CHAPTER 1

WHAT IS TORT?

SYNOPSIS

1. Introduction

2. Meaning & Definition of Tort

2.1. Duty primarily fixed by the law

2.2. Duty is towards persons generally

2.3. Action for unliquidated damages

3. Essentials of Tort

3.1. Wrongful act or omission

3.2. Legal damage

3.3. Legal remedy

3.4. Mathematical formula

4. Ubi Jus Ibi Remedium

5. Foundation of Tortious Liability

6. Conclusion

1. Introduction

The word `tort' is of French origin and has been derived from the Latin word `tortum'
which means to twist and implies conduct which is tortious or twisted. The word tort is
equivalent of the English word "wrong", of the Roman word "delict" and of the Indian
Sanskrit word "jimha". According to P. Sen, this Sanskrit word "jimha", which means
"crooked", was used in ancient Hindu Law text in the sense of "tortious or fraudulent
conduct."1 A question therefore arises: how this French word "tort" came to India? If we
look at the journey of the word "tort" from France to India we find that it came to India
through England. In 1065 England was conquered by the Normandy people. Normandy
is a place in France. After Norman conquest, French became the spoken language of the
courts and language of legal treatises for a number of years. Thus it happened that
many technical terms of English law are French in origin2 and "tort" is one of them.3 In
the eighteenth century the first British courts were established in the three Presidency
towns of Bombay, Calcutta and Madras. These courts were known as Mayor's courts.
The Charter which established them introduced in

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1. See the Text of Narada cited in Priyanath Sen Hindu Jurisprudence, p. 211; K.P. Saxena Hindu Law &

Jurisprudence, p. 170.

2. The others are, debt, contract, heir, trespass, pay, money, court, judge etc. See., Maitland, Collec.,

Paper 8, Vol. II, p. 437.

3. The word tort was used by Britton, a writer of law during the end of 13th Century, as title of a Chapter

on some of the smaller offences, "De Plusours, tortz".

their jurisdiction, the English common law of torts in force at the time so far as it was
applicable to the Indian circumstances. Thus, the word "tort" was introduced in Indian
legal system.1

As for other courts in India, there was no express provision for the administration of the
English common law of torts. Actually, these courts were established by local Acts.
These Acts contained a section which required them to act according to "justice, equity
and good conscience" in case there was no specific law or usage. The expression
"justice, equity and good conscience" has been interpreted by the courts to mean the
rules of English common law so far as they are applicable to Indian society and
circumstances. A case2 on this point may be cited:

Surendra Kumar v.Distt. Board,Nadia3.-

In this case the facts briefly were that one party wanted to use a highway against a
rival party who obstructed them in the use of the same. Accordingly, a suit of nuisance
was instituted in the court. Justice B.K. Mukherjee, holding it not to be a case of public
nuisance, also discussed the applicability of law of torts in India. He observed, "In the
case of tort, there being no Indian statutory law, the Indian courts have always adopted
the English common law as being consonant to justice, equity and good conscience.
They have departed from the English law only when a particular rule was unsuitable to
local conditions."4

It would thus be seen that the law of torts as administered in India is the English
common law of torts so far as it is applicable to Indian society and circumstances and
has not been modified by the Indian legislature. However, the recent trend of the Indian
courts is that they do not follow an outdated common law5 or where the common law is
against the rule of justice, equity and good conscience. 6 But what is "English common
law" needs mention at this stage. The common law of England, originates in the
common customs of the people who have inhabited England from the very early period.
The ancient laws and customs of the people, as interpreted, modified and unified by the
courts resulted in the collection of legal principles known as the "common law". The
English Law of torts is a branch of the English common law meaning the case law or
precedent of the common law courts and is distinguished from the statutory law or the
law enacted by the Acts of British Parliament. It is therefore important to note that the
laws enacted by the British Parliament are not "common law" and Indian courts are not
bound to follow them.

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1. Although the word "tort" was used in India much earlier by the officials of the East India Company, but it

was legally introduced in India in eighteenth century.

2. The others are: Waghela Rajsanji v. Sheikh Masluddin, (1667) 14 IA 96; S.N. Roy v. Dinbandhu, 1914
ILR 42 Cal 469; S.C. Chakravarti v. R.D. De, MANU/WB/0191/1920 : AIR 1921 Cal 1; Tiruvengoda

v. Tripurasundari, 1926 ILR 49 Mad 728; Ram Chandran v. S. Khan, MANU/NA/0039/1926 : AIR

1927 Nag 75; Babu S/o Thakur Dhobi v. Subashi, AIR 1942 Nag 650; Nawal Kishore v. Rameshwar Nath,

1955 All 594.

3. MANU/WB/0207/1941 : AIR 1942 Cal 360.

4. Ibid., p. 365.

5. M.C. Mehta v. Union of India, Judgment Today, Vol. 1, No. 1, Jan. 1, 1987.

6. Nawal Kishore v. Rameshwar, MANU/UP/0170/1955 : AIR 1955 All 585; Kushal Rao v. B.R.G.

Rao, AIR 1942 Nag 52; Dharni Dhar v. Chandra Shekhar, MANU/UP/0050/1951 : AIR 1951 All 774;

Khushro S. Gandhi v. N.A. Guzdar, AIR 1970 SC 1468.

2. Meaning & Definition of Tort

Law of Tort is concerned with the allocation and distribution of losses. This is the branch
of law governing actions for damages for injuries to private legal rights, say for
example, right to property, right to personal security, right to reputation etc. The word
"tort" means in law, a wrong or injury which has certain characteristics. Its most
important characteristic is that it is redressible in an action for damages at the instance
of the injured person. Here the injured person can get damages from the wrong doer to
the satisfaction of his injury. But this is not enough. In order to ascertain complete
meaning of law of torts we must give certain definitions. But definitions are also
incomplete although much ink has been spilt in defining a tort. In other words it is not
feasible, if not impossible, to give any precise or scientific definition. It is for the reason
that law of tort is still growing and has not yet reached the saturation point. Street in
his "Foundation of Legal Liability" also supports this view: "No definition of tort at once
logical and precise can be given. The reason for this is found in the fact that the
conception belongs to the highest category in legal thought. Any logical definition of tort
must specify the condition under which delictual liability arises. But there is no typical
tort, and in the nature of things it is impossible that a specification of the circumstances
under which delictual liability is imposed should have finality." 1 Yet one more attempt
will be made by the author in this book after analysing important definitions so that the
students of law could get clear concept and meaning of "tort".

Clerk & Lindsell:—

"A tort may be described as wrong independent of contract, for which the appropriate
remedy is common law action."2

According to this definition, tort is a wrong, but what is wrong has not been explained.
Moreover, this definition deals with the procedural features of tort rather than jural. This
can, therefore, hardly claim to be a definition of a legal concept.

Sir Federick Pollock:—

"The law of torts in civil wrongs is a collective name for the rules governing many
species of liability which, although their subjectmatter is wide and varied, have certain
broad features in common, are enforced by the same kind of legal process and are
subject to similar exceptions."3

The words in this definition used by the author are too vague. It can hardly be claimed
a definition, much less a scientific one.

Salmond:—

"Tort is a civil wrong for which the remedy is a common law action for unliquidated
damages, and which is not exclusively the breach of a contract or the breach of a trust
or other merely equitable obligation."4

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1. Street Foundation of Legal Liability, Vol. LP. XXV, XXVI.

2. Clerk & Lindsell Torts, (8th Edn.), p. 1.

3. Pollock Law of Torts, (15 Edn.), pp. 115.

4. Salmond Law of Tort (11th Edn.), p. 15.

This definition fails to underline the essential characteristic of tortious act and
moreover, as in the definition of Clerk & Lindsell, the expression "civil wrong"
itself requires elucidation.

Winfield:—
"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."1

This definition is more informative than the previous definitions quoted above. But this
definition is also far from perfect. Let us, therefore, examine this definition and point
out the shortcomings. The noticeable points in this definition are discussed below:

2.1. Duty primarily fixed by law

The basic principle of tortious liability is that the duty from the very first must be
fixed by the law itself and not by the agreement of parties. Parties, therefore,
cannot create tortious liability by contract and also it cannot be negatived by
them. For example, I am under a legal duty not to trespass on your land. Now
this duty has been primarily fixed by the law on me and has not been created
between you and me through an agreement. On the basis of this element, tort is
quite distinct from contract and bailment where the duty is fixed by the parties
themselves. But in this definition it is said that the liability arises from the
"breach of a duty...", i.e., a duty of the person liable. It would mean that a
person who commits a breach of duty himself is held liable. But in tort there are
cases where a person has not committed a breach of duty himself, yet he is held
liable. For example, vicarious liability cases—where a master is vicariously liable
for his servant's tort. An illustration may be given here. In India it is the legal
duty of every driver to drive his vehicle carefully on the left hand side of the
road and that too within the prescribed speed limit of the place. A employed a
driver B to drive his car. On certain day A asked B to fetch his relations from the
station. B drove the car towards the station at an excessive speed and that too
carelessly, with the result that he met with an accident and injured a pedestrian
C. Here, although B has committed a breach of duty primarily fixed by the law,
but his master A will be held liable in civil action under the rule of vicarious
liability.2 Such kinds of cases do not come within the purview of this definition.

2.2. Duty is towards persons generally

Here, it should be noted, the emphasis is laid upon "generally". If the duty is
towards specific person/persons, it cannot arise from tort. In other words, the
duty in tort is always general. For example, I am under a legal duty not to
commit assault or any other tort against any one who can sue me in a court.
This element of generality is, therefore, an important factor. It is sufficiently
workable in the majority of cases. However in some instances it is hard to say
who exactly are "persons generally". To that extent these words are vague. In
any case, this characteristic of tortious liability serves to distinguish it from the
contractual
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1. Winfield and Jolowicz on Tort, (15th Edn.), 1998, p. 4.

2. See also State of Kerala v. P.G. Kumariamma, AIR 2011 (NOC) 250 (Ker) where the court made the

State vicariously liable for negligence of Government doctor in a failure of operation to a woman.

liability, quasicontractual liability and the liability arising from bailment where
the duty is towards specific persons.

2.3. Action for unliquidated damages

The terms "liquidated damages" and "unliquidated damages" need explanation.

Where the plaintiff in an action sues for a predetermined and inelastic sum of
money, he is said to have claimed liquidated damages. But where he sues for an
amount as the court, in its discretion, is at liberty to award, he is claiming
unliquidated damages and this is so even where he has mentioned a particular
sum of money in his pleadings.

In tort, the damages remains uncertain or unliquidated until the case is finally
decided by the court. The action for unliquidated damages, as mentioned by
Prof. Winfield, is a pretty sure test of tortious liability because the award of
damages is under the complete discretion of the courts. For example, in the case
of State of Rajasthan v. Vidyawati,1 the damages claimed by the plaintiff were
Rs. 25,000, but the court awarded only Rs. 15,000. If we take this element of
tort we can easily distinguish it from contract and bailment where the amount of
loss is always pre-determined and inelastic.

But it should be noted that unliquidated damages is not the only remedy for a
tort and that for some torts, it is not even the primary remedy. There are other
remedies also which have not been included in this definition. They are: (a) self-
help, (b) injunction and (c) actions for specific restitution of property.

Selfhelp is a remedy of which the injured party can avail himself without going
into a law court at all. It does not apply to all torts and perhaps the best
examples of those to which it does apply is trespass to land. For example, if you
find a drunken stranger in your room who has no business to be there and is
thus a trespasser, you are entitled to get rid of him, if possible without force, but
if that be not possible with such force as the circumstances of the case may
warrant. Thus, an action for unliquidated damages, as mentioned by Prof.
Winfield, is not necessarily the primary remedy for a tort. This is particularly in
those cases where self-help is possible.

Injunction is a judgment or order of the court restraining the commission or

continuance of some wrongful act or the continuance of some wrongful omission.
 For example, nuisance. In such a case the first remedy that would suggest itself
is injunction and an action for damages would come later. Thus, here injunction
is the primary remedy and not unliquidated damages which comes later.

Actions for specific restitution of property are the alternative remedies in tort.
They are granted when the plaintiff has been wrongly dispossessed of his land,
chattels or goods. These alternative remedies are not subordinate to an action
for unliquidated damages. To put it in other words, an action for damages is not
necessarily the primary remedy.

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1. MANU/SC/0025/1962 : AIR 1962 SC 933.

It would thus be seen that although the definition of Prof. Winfield supplies a
good working rule in many cases, marks out a definite scope of study for the
subject and has the merit of distinguishing it from contract, bailment etc., yet it
is not precise and far from perfect. Looking to the impossibility of a scientific
definition of tort, one should not attempt to define it. Yet the author will make
an attempt to define it and will try to bring in it the nature, scope and
characteristics of torts. The definition of the author runs as follows:

"Tortious liability arises from the breach of a duty primarily fixed by law
which results in an infringement of private legal right of another and, for
which, civil action for unliquidated damages, injunction, specific
restitution of property or even self-help, as the case may be, can be
maintained."

The above definition is workable in almost all the cases of torts and brings out
very clearly the nature, scope and elements of torts. It also distinguishes tort
from contract, bailment and crime. It is unnecessary to discuss every point of
this definition as we have already discussed in great detail the definition of Prof.
Winfield and pointed out its shortcomings. For example, (a) the words "duty is
towards persons generally" are vague, and (b) "unliquidated damages" is not the
only remedy, not even the primary remedy. There are other remedies also, e.g.,
injunction, specific restitution of land and chattels and selfhelp. All these
shortcomings have been covered in the author's definition.1 However, in
constituting a tort following elements are also deducible from the definition:

3. Essentials of Tort

1. There must be a wrongful act or omission on the part of a person;

2. That wrongful act or omission must result in legal damage to another;

 3. The wrongful act or omission must be of such a nature as to give rise to a
legal remedy.

3.1. Wrongful act or omission

The first essential ingredient in constituting a tort is that a person must have
committed a wrongful act or omission i.e., he must have committed a breach of
that duty which has been fixed by the law itself. The question, therefore, arises
what then in law, a duty is? It may mean that there is some legal limitation or
restriction on the conduct of a person that he should behave in such a manner
as a reasonable person would have behaved in like circumstances. If a person
does not observe that duty like a reasonable and prudent person or breaks it
intentionally, he is deemed to have committed a wrongful act. A wrongful act
may be a positive act or an omission which can be committed by a person either

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1. Similarly, all such shortcomings have been covered in I.P. Singh's definition. According to him, "Tort is

the breach of a duty primarily fixed by law which results in injury to another and for which civil action for

unliquidated damages, injunction, specific restitution of property, or even self-help, as the case may be, is

maintainable."

negligently1 or intentionally2 or even by committing a breach of strict duty.3 For

example, if a person drives his motor cycle at an excessive speed in violation of
law or fails to perform a duty as required by law, or beats a person in order to
take revenge or keeps a lion on his land which escapes and injures a person on
the road, he can be made liable for positive wrongful act or omission in
negligence, battery or breach of strict duty, as the case may be.

But it may be noted, a breach of merely moral or religious duty will not suffice;
it must be a duty primarily fixed by the law. For example, once Miss A was
seriously ill and she was all alone in her house. She requested her neighbour B
to lookafter her. B did this i.e., he brought medicines, cooked food for her and
served her also. She became alright. After sometime B fell ill and by chance he
was also alone in his house. He then requested Miss A to lookafter him. But Miss
A never acceded to his request with the result that Mr. B suffered a lot and
became disabled. Do you think that Miss A has committed a breach of legal
duty? Here the duty is simply a moral duty and has not been fixed by the law
itself. Thus, Mr. B cannot take any legal action against Miss A.

Even if it is a breach of religious duty, which is not imposed by law, an action

cannot be maintained. A case worth mentioning in this area is of Dhadphale v.
Gurav.4 In this case the facts briefly were that Dhadphale, a servant of the
Hindu temple, had a right to get the food offered to the idol. The defendant Mr.
 Gurav, was under an obligation to the idol to offer the food, but he did not do
so. The servant, therefore, brought a suit against him for damages. It was held
by the court that the defendant was under no legal obligation to supply food to
the temple's servant, and though his omission to supply food to the idol might
involve a loss to the plaintiff, it was a breach of religious duty, and could not
entitle the plaintiff to maintain a suit.

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1. Negligence in common parlance means when a person acts carelessly and he is said to be careless when

he does not act like a reasonable and prudent person. However, negligence in its technical legal sense

means `duty owed and neglected, (discussed infra in detail). Thus in negligence there is no desire for the

consequences.

2. `Intention' signifies full advertence in the mind of the defendant to his conduct, which is in question and

to its consequences, together with a desire, for those consequences. Intention by itself is not a good

defence to an action in tort. Intention of the defendant may be good or bad but it is impossible to know the

intention of the defendant with certainty. Centuries ago Chief Justice Brian had rightly said: "It is common

knowledge that thought of man shall not be tried, for the devil himself knoweth not the thought of man."

(Year Book Pasch, 17 Edn. 4, Vol. 2, p. 2) Accordingly, the law takes into account that intention of the

person which is the necessary or natural consequence of that which he does. For example, if A fires a gun

at B's dog, with the mere intention to scare it, and in fact the bullet hits it, it does not lie in A's mouth to

say that he intended only to scare it and not to hit it. Now, here the law will not take into account the mere

intention to scare it, it will take into account that intention which is the necessary and natural consequence

of his act, i.e., intention to hit the dog.

3. `Breach of strict duty' entails liability of person even though he is not at fault. It was laid down in the

celebrated case of Rylands v. Fletcher that "if a person brings or accumulates on his land anything which, if

it should escape, may cause damage to his neighbours, he does so at his peril, if it does escape and cause

damage, he is responsible, however careful he may have been, and whatever precautions he may have

taken to prevent damage." (1868 LR 3 HL 330). For details, see chapter on "strict liability", infra.

4. (1881) 8 Bom 122.

One should, therefore, always keep in mind that the duty from the very first
must be fixed by the law. This is the first element in tort which a student of law
should always keep in mind. But if an act has been done by a person
involuntarily or under the influence of pressing danger, he will not be deemed to
have committed a breach of legal duty. Again if an act or omission is done under
some lawful excuse, it would not amount to breach of legal duty or a wrongful
act. For example, a police officer in following a thief trespassed the land of Mr.
B. Here the police officer will not be deemed to have committed a breach of legal
duty because of lawful excuse or justification.
 The crucial test of a breach of legal duty or a legally wrongful act or omission,
however, is its prejudicial effect on the legal right of another person which is
dealt with under the heading Legal damage i.e., "infringement of private legal
right", the second essential of tort. Because without injuria (i.e., infringement of
private legal right) a person does not become a tort-feasor, although he might
have committed a breach of legal duty. For example, driving of a motorcycle on
the wrong side is a breach of legal duty and is not actionable in tort unless
somebody is injured.

3.2. Legal damage

The second important ingredient in constituting a tort is legal damage. Legal

damage means an invasion or infringement of private legal right. It is for the
plaintiff to prove that there has been legal damage caused to him due to
wrongful act of the defendant. Even if the plaintiff has not suffered any loss, still
he can succeed if his private legal right is violated. 1 But what is `legal right'
needs explanation.

According to Austin, right is a faculty which resides in a determinate party or

parties by virtue of a given law and which avails against a party other than a
party or parties in whom it resides. Ihering has defined it in very simple terms.
"Rights are legally protected interests." Thus, one can say that a right is an
interest recognised and protected by law. Rights may be divided into two kinds:

(i) Private right &

(ii) Public right

Private rights are those rights which vest in a person by virtue of law. In other
words, these are the rights which belong to a particular person to the exclusion
of the world at large. For example, right to reputation, right to bodily safety and
freedom, right to property etc. If a person has a legal right, then in law, others
have a legal duty towards him not to violate his legal right. Right and duties are,
therefore, correlative. So, whenever, a person's legal right is infringed or
violated without lawful excuse, he has a right of action against the person who
infringes or violates it. For example, A trespasses the land of B. Here A has

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1. This is expressed in the maxim Injuria Sine Damno, discussed in detail in Chapter 3; See also Ashby v.

White, where plaintiff's legal right to vote in the parliamentary election was maliciously violated by the

defendant and the defendant was held liable, although the plaintiff did not suffer any loss. See Chapter 3,

infra.

violated the private legal right of B by committing breach of legal duty. These
 kinds of cases, therefore, generally fall in the category of tort.1

Public rights are those rights which belong in common to the members of the
State generally. For example, public peace. When a public right is violated by a
person, then the remedy of the public is by indictment. In other words, in such
cases State takes action against the offender (or the wrongdoer) and the
offender is punished. However, in cases of breach of public right, a private action
in tort can also be commenced if there is a special, peculiar and substantial
damage to the plaintiff. For example, a notorious dacoit entered a mohalla,
threatened the persons of that mohalla and also beat Mr. B a resident of that
mohalla. Here he has disturbed the public peace and also has inflicted particular
and substantial damage to B. In this problem, on the one hand, he will be held
liable to B for damages in tort and, on the other hand, the state will take action
against him and he will be punished under criminal law.

It should therefore be noted that injuria or infringement of private legal right

resulting from a breach of legal duty is an indispensable element in constituting
a tort. Without injuria no action in tort can be maintained.

3.3. Legal remedy

The third essential for an action in tort is that the act complained of must give
rise to a legal remedy. In other words, there must be some legal remedy against
a wrongful act. A tort is a civil injury. But, it should be borne in mind that all civil
injuries are not torts. It is therefore necessary that wrongful act must come
under the category of wrongs (torts) for which the remedy is a civil action. The
principal remedy for a tort is damages, but there are other remedies also, e.g.,
injunction, specific restitution of property or an action by the plaintiff himself
without going to the court i.e., selfhelp. Only one remedy for a tortious act is not
the criteria. There may be two remedies for one wrongful act. For example,
where a person has been wrongly dispossessed of his cow, he can recover his
cow (i.e., specific restitution of property) and also damages.

3.4. Mathematical formula

It has been seen that tort is a civil injury for which an action by the injured can
be maintained against the wrongdoer in the civil court provided there is a legal
remedy for that wrongful act. If we mathematically try to explain tort, the
following formula is deducible:

Wrongful act + Legal damage + Legal remedy = Tort

Wrongful act signifies a breach of legal duty i.e., a person must commit an
unauthorised act or omission which is independent of contract. Legal damage
signifies infringement of private legal right of another person and legal remedy
 signifies that there must be atleast one of four remedies recognised by law i.e.,
damages, injunction, specific restitution of property and selfhelp.

If a beginner of law keeps this mathematical principle in his mind, he will be able
to understand the Law of Torts in its proper perspective. If a problem does

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1. Such cases may also fall in the category of crime under certain circumstances.

not contain these three elements or any one of them, it can be said that a tort
has not been committed.

4. Ubi Jus Ibi Remedium

It is also not out of point to mention here that Law of Torts is said to be the
development of the maxim "ubi jus ibi remedium". `Jus' means the `legal authority to
demand reparation or something and `remedium' means the right of action. Thus it
means there is no wrong without a remedy. In other words "where there is a right,
there is a remedy" or there is no right without a remedy. In the famous case of Ashby
v. White1 it was laid down by Holt, C.J., that "if the plaintiff has a right, he must of
necessity have a means to vindicate and maintain it, and a remedy if he is injured in the
exercise of enjoyment of it, and indeed it is a vain thing to imagine a right without a
remedy: for want of right and want of remedy are reciprocal."2

The significance of the above maxim is therefore quite clear and means that law
provides a remedy for every right.

5. Foundation of Tortious Liability

There is a difference of opinion among the jurists as to what constitutes the foundation
of tortious liability. According to Prof. Winfield, there are two competing theories:

1. All injuries done to another person are torts, unless there is some justification
recognised by law.

2. There are a definite number of torts outside which liability in tort does not
arise.

The first theory has been supported by Sir Frederick Pollock and eminent judges. It has
also been supported by Prof. Winfield. According to him, if I injure my neighbour he can
sue me in tort whether the wrong happens to have a particular name like assault,
battery, deceit, slander, or whether it has no such name at all and I shall be liable if I
cannot prove lawful justification. On this view the Law of Tort or the Law of Torts (it is
immaterial which we call it) consists, not merely of all those torts which have acquired
specified names but also includes the wider principle that all unjustifiable harms are
tortious. This enables the courts to create new torts."3 This theory is supported by the
dictum of many eminent judges. Thus, in Chapman v. Picker S. Gill,4 it was remarked by
Pratt C.J., that "Torts are infinitely various, not limited or confined." In Skinner & Co. v.
Shew & Co.5 it was remarked by Bowen L.J., that "at common law there was a cause of
action when ever one person did damage to another wilfully and intentionally without
just cause or excuse. According to Sir Frederick Pollock, the every day growth of
complex society has given rise to many new kinds and

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1. (1703) 2 Lord Rayam 938.

2. Ibid., p. 955.

3. Winfield on Tort, 6th Edn., p. 14.

4. (1762) 2 Wills 145 (146).

5. (1893) 1 Ch 413 (422).

categories of torts, and the judges adjudged the liability of the defendant in each such
case.

The second theory also known as pigeonhole theory. It resembles the ten
commandments with their precise specifications of sins. According to this theory the law
of torts consists of a net-set of pigeonholes, each containing a specific tort. For
example, assault battery, deceit, slander or any other nominate tort. If the defendant's
wrong does not fit in any of these pigeonholes, he has committed no tort. Sir John
Salmond is the chief supporter of this theory. According to him, "Just as the criminal law
consists of a body of rules establishing specific offences, so the law of torts consists of a
body of rules establishing specified injuries. Neither in the one case nor in the other is
there any general principle of liability. Whether I am prosecuted for an alleged offence,
or sued for an alleged tort, it is for my adversary to prove that the case falls within
some specific and established rule of liability, and not for me to defend myself by
proving that it is within some specific and established rule of justification or excuse."

6. Conclusion

The first theory has been supported by Lord Mansfield in 1760 in the case of Gardiner v.
Creasdale,1 by Pratt, C.J. in 1762 in the case of Chapman v. Pickers, Gill2 and by Bowen,
L.J. in 1893 in the case of Skinner & Co. v. Skew & Co. 3 It has also earned the approval
of Holmes. J., on the other side of the Atlantic. 4 Moreover, the first theory is reinforced
by the fact that the courts have repeatedly extended the domain of the law of tort by
creating new torts i.e., torts to which specified names have been given. For example,
tort of malicious prosecution, deceit, absolute or strict liability etc. Thus it is clear from
these and other instances that the law of tort is steadily expanding and that the idea of
its being cribbed, cabined and confined in a set of pigeonholes is untenable. However,
Dr. Jenks has very ably met the objections of second theory. He stated that although
there is a weak spot in the second theory i.e., it appears to regard the list of torts which
have specific names as a closed one and to make the creation of new torts by judicial
decisions impossible, but he contended that new torts can be created and this is
perfectly consistent with the second theory because these new torts cannot come into
being unless the courts regard them as substantially similar to torts which they have
already recognised.5 Jenk's view does not appear to be correct as various new torts like
deceit, strict liability, malicious prosecution etc. have been created by the judges and
are not similar to any one of those already in existence.

Heuston is of the view that Salmond's critics have misunderstood him because he never
committed himself to the preposition that the law of torts is a

_______________________________

1. (1760) 2 Burr 905.

2. Ibid., p. 145.

3. Ibid., p. 422.

4. Aikens v. Wisconsin, 191 (195) US 194.

5. Journal of comparative legislation, Vol. CIV, (1932), p. 210.

closed and in expansible system.1 Glanville William is also of the same view: "To say
that the law can be collected into pigeon holes does not mean that those pigeonholes
may not be copious, nor does it mean that they are incapable of being added to."2

Winfield has now modified his stand by saying that both the theories are correct—the
first theory from a broader point of view and the second from a narrower point of
view.3 He states that "from a narrow and practical point of view, the second theory will
suffice, but from a broader outlook, the first is valid. If we concentrate attention on the
Law of Tort at the moment (which is what most practitioners do), entirely excluding the
development of the law, past and future, then it corresponds to the second theory. If
we take the wider view that the Law of Tort has grown for centuries and is still growing,
then the first theory seems to be at the back of it. It is the difference between treating
a tree as inanimate for the practical purposes of the moment (e.g., for the purpose of
avoiding collision with it, it is as lifeless as a block of marble) and realising that it is
animate because we know that it has grown and is still growing."

From the above points of view, it appears that both the theories are correct. It is a
question of approach and looking at the things from a certain angle.
___________________________

1. Salmond Torts, 17th Edn., p. 17 edited by Heuston.

2. (1939) 7 CLJ 104.

3. Winfield and Jolowicz Tort, 10th Edn., p. 19.

 
 

© Universal law Publishing Co.

    

CHAPTER 2

TORT COMPARED

Synopsis

1. Introduction

2. Distinction between Tort and Crime

3. Distinction between Tort and Contract (i.e. breach of contract)

4. Distinction between Tort and Quasi-contract

5. Distinction between Tort and Breach of Trust

6. Distinction between Tort and Bailment

1. Introduction

In order to understand the law of torts in its proper perspective, it is to be compared it

with other kinds of legal liabilities. It is, therefore, proposed to distinguish tort from
crime, breach of contract, breach of trust and bailment.

2. Distinction between Tort and Crime

The distinction between tort and crime belongs to a comparatively mature stage of
civilisation. The laws of primitive communities were concerned mainly with the payment
of pecuniary reparation to the person injured. Even for grave crimes like homicide and
serious bodily injury, private compensation was allowed. According to Sir Henry Maine,
"The penal law of primitive communities was not the law of crimes but the law of
wrongs or torts."1 The AngloSaxon laws were not very much advanced. They were
mostly concerned with the recital of the customary amounts payable for various kinds of
wrongs or injuries, viz., WER was the price which was payable by the person causing
death, and BOT was the payment for personal and other injuries. But they also
contained the germ of the modern law of crime i.e., in some cases a WITE or fine was
payable to the King or Lord.2 It was only after the Norman conquest and that too during
the reign of strong rulers like Henry II that courts were established which could punish
all forms of violence as offences against the King's peace instead of allowing them to be
compounded as private wrongs. It is at this stage that the tort and crime which
remained into hotchpotch for several centuries, were separated from each other. Due to
this hotchpotch, various attempts made in the past by the authors to draw a distinction
between a crime and a tort

_______________________
 1. Maine Ancient Law, p. 379.

2. Ibid., p. 407.

remained with somewhat doubtful success. Holdsworth, speaking of the distinction

between tort and crime, stated, "The only certain lines of distinction are to be found in
the nature of the remedy given, and the nature of the procedure to enforce the remedy.
If the remedy given is compensation, damages, or a penalty enforced by a civil action,
the wrong so redressed is a civil wrong. If the remedy given is punishment of the
accused which is enforced by a prosecution at the suit of the Crown, the wrong so
redressed is a crime..."1 Blackstone states the distinction in the following words—"The
distinction of public wrongs from private, of crime and misdemeanours from civil
injuries, seems practically to consist in this: That private wrongs or civil injuries are an
infringement or privation of the civil rights which belong to individuals, considered
merely as individuals; public wrongs, or crimes and misdemeanours, are a breach and
violation of the public rights and duties due to the whole community, considered as a
community in its social aggregate capacity."2 These tests sometimes fails to establish a
clear line of difference.3 However, in simple words, a tort differs both in principle and
procedure from a crime, and there are basic differences between a tort and a crime.

A tort is an infringement of the private rights belonging to an individual. A crime is an

invasion of public rights or duties affecting the whole society.

In tort the wrongdoer has to pay damages to the injured party. In crime he is punished
by the state and the fine imposed on him goes to Government treasury.

In tort the civil action is brought by the injured party himself in the civil court; whereas
in crime the proceedings are taken and conducted in the name of the State in criminal
court.

Criminal proceedings differ from civil cases in the rules of evidence, in waiver of the
rules of procedure, in the President's or Crown's power of pardon and in other ways.

But a liability in tort may coexist with criminal liability. In other words, the same act
may both be a crime as well as a tort. Most of the crimes are also torts, e.g., assault,
libel, theft etc. In such cases the wrongdoer may be ordered to pay damages to the
injured party, and may also be punished criminally by imprisonment or fine. However,
sometimes an injury may be regarded as a crime, but not a tort, e.g., a public nuisance
like an obstruction of a high way is an offence but no action for damages will lie unless
the plaintiff has suffered special damage. Similarly, an injury may be a tort but not a
crime when it lacks the element of danger to public interests. For example, an innocent
or mistaken trespass on land. In order to find out whether or not an act has a two fold
character of being a crime as well as a tort, one should see whether the act comes
within the definition of a crime, and also within that of a private injury. If it does, both
actions for tort and crime may lie against the wrongdoer.

______________________

1. Sir William Holdsworth History of English Law, p. 7.

2. 4 Blackston Commentary, p. 5.

3. See A.G. v. Bradlaugh, 14 QBD 567.

The distinction between a tort and a crime is given below in a tabulated form:

Tort     Crime

1. A tort is an 1. A crime is a breach of public rights

infringement of private or and duties which affect the community
civil right of an as a whole.
individual.   

2. In tort a wrongdoer has  2. In crime a wrongdoer is punished

to pay damages to the by the state in the interest of the
injured party.    society. The fine imposed on him goes
to Govt. treasury.

3. In tort the action is   3. In crime the proceedings are

instituted by the injured conducted in the name of the state.
party.   

4. In tort the intention is  4. In crime the intention is the  main

of  subordinate factor.
importance.   

5. Tort is regarded as a 5. Crime is regarded as a public 

private wrong.    wrong.

3. Distinction between Tort and Contract (i.e. breach of contract)

The distinction between tort and contract was recognised and stated in its present form
only in comparatively modern times. Till sixteenth century the form of action for a
breach of a simple contract was not provided, but its purpose was served by an action
of trespass on the case.1 The growth of trade and commerce which resulted in the
increase of litigation in contracts made a special form of action of `assumpsit' by
converting the old action of trespass on the case. In seventeenth century this action had
become very popular. It was at this stage that the distinction between tort and contract
emerged. When the forms of actions disappeared in the last century, greater attention
to juridical principles and distinctions became possible and, the difference between a
tort and a breach of contract was stated in the form of distinction in the nature of the
rights or duties. Now there is a well marked distinction between a contract and a tort.
According to Professor Winfield, "At the present day, tort and contract are distinguished
from one another in that the duties in the former are primarily fixed by the law, while in
the latter they are fixed by persons themselves. Moreover in tort the duty is towards
persons generally, in contract it is towards specific persons or a specific person.2

A case on this point is that of Addis v. Gramophone Co. Ltd.,3 where the distinction
between tort and contract has also been drawn in the following words: "...by entering
into a contract, the parties to it create for themselves rights and obligations and a
breach of duty arising out of those obligations is actionable as a breach of contract, and
when it is necessary in order to establish the existence

__________________________

1. Holdsworth, Vol. 111, p. 434.

2. Principles of Law of Tort by Winfield, 6th Edn., p. 40.

3. 1909 AC 488.

and enforceability of the duty, prove and rely upon the contract, the only action that
can be brought is an action for breach of contract, and the breach of a duty of this kind
is not a tort. Thus an action for wrongful dismissal of an employee is a breach of
contract and not a tort. So also, is perhaps, a wrongful expulsion from school".

Another worth mentioning case on this point is that of Jarvis v. May Davies,1 where
Green L.J. brought out the difference between tort and contract. He stated that "the
distinction in the modem view for this purpose between contract and tort may be put
thus: Where the breach of duty alleged arises out of a liability independently of the
personal obligation undertaken by contract, it is tort and it may be a tort, even though
there may happen to be a contract between the parties, if the duty in fact arises
independently of that contract. Breach of contract occurs where that which is
complained of is a breach of duty arising out of the obligation undertaken by the
contract."

It would thus appear that there is a well marked distinction between a tort and a breach
of contract.

1. Firstly, in tort the duty is fixed by the law itself; whereas in contract it is fixed
by the express or implied consent of the parties. For example, if X commits
battery against Y, or damages Y's property without lawful cause or excuse, it is a
tort. Here the duty violated is a duty imposed by the law itself, i.e., the duty not
to do unlawful harm to any person or his property. But, suppose, X agrees to sell
goods to Y for a price. In case X does not sell the goods to Y, he has committed
a breach of duty which he agreed to perform under a contract with Y. Here the
 duty has been fixed by the parties themselves and not by law.

2. Secondly, it appears from the above example that in tort the duty is towards
every person of the community or society; whereas in the case of breach of
contract it is towards a specific person or persons.

3. Thirdly, in the case of breach of contract the motive is immaterial but in the
case of tort it is often taken into consideration and the best example for this is
the tort of malicious prosecution.2

4. Fourthly, in the case of breach of contract the compensation is predetermined

to the extent of loss, but in the case of tort the damages are unliquidated and,
therefore, they are not predetermined.

5. Fifthly, minors or infants are not generally liable for breach of contracts but
they are generally liable in cases of torts.

6. Sixthly, in contract there is a privity between the parties but in tort no privity
is needed. In other words, a stranger to a contract cannot complain of the
breach of any of its terms, as no right of his is violated and even if the breach
causes him damage it is a case of damnum obsque injuria. A case of Winter
Bottom v. Wright3 illustrates this point.

_________________________

1. (1936) 1 KB 390.

2. For Example see, Abrath v. N.E. Rly Co., (1886) II App Cas 247.

3. 1958 LB.

In that case the facts were that Mr. A agreed with the PostmasterGeneral to provide a
coach for the conveyance of mails and also during the currency of the contract to keep
the coach in repair. Another person, B, was under a contract with the Postmaster-
General to convey the mails. B, therefore horsed the coach and hired Mr. C to drive it.
While Mr. C was driving, the coach broke down owing to A's failure to keep the coach in
repair and C was injured. C sued A for damages. It was held that in effect C was
attempting to take advantage of the contract between A and the Postmaster-General
and was basing his claim upon the breach of that contract and nothing else. C's suit was
therefore dismissed as there was no privity of contract.

But in the case of tort there is no question of privity of contract and, therefore even a
third party can sue in an action for tort. This has been illustrated in the case of Cladwell
v. Steggal.1 In that case the facts were that the husband employed a surgeon to attend
to his wife and infant child. The patient was injured on account of the negligence of the
surgeon. It was held that the patient had a cause of action in tort against the surgeon
for negligence even though the contract was between the surgeon and the husband and
not between the surgeon and the patient.

But there may be cases in which the contractual and tortious liability may overlap.
These are the cases in which the same wrong may be both a breach of contract and also
a breach of duty arising independently of the obligations undertaken by the contract
and therefore a tort. Such a position arises generally in those cases where a party
undertakes by the contract to do some thing, the doing of such thing imposes on him
the duty to take care. Such concurrent liability in tort and contract is generally found in
the case of bailees, innkeepers,2 carriers,3 surgeons and doctors.4 A case of Austin v.
G.W. Rly5 is a good illustration on this point where it was held by the court that if a
passenger with a ticket is injured while travelling due to the negligence of the railway
company, the company is liable in tort. Justice Blackburn observed: "the right which a
passenger by railway has to be carried safely does not depend on his having made a
contract but the fact of his being a passenger casts on the company a duty to carry him
safely. The child was taken into the train and received as a passenger by the railway
company's servants with their authority. Under these circumstances, does not the law
require those who were carrying the child to take reasonable care that he should come
to no damage."

Thus, the general rule is that where tort and contract overlap, the coexistent rights and
duties created thereby do not adversely affect one another. The breach

_____________________

1. (1839) 3 Bin NC 933.

2. See, Jarvis v. Moy, Davis & Co., (1939) 1 KB 399.

3. See, Groom v. Crocker, (1939) 1 KB 194.

4. See, Edwards v. Mallon, (1908) 1 KB 1002.

5. (1867) 36 UQB 201; See also Fagon v. Green, (1926) 1 KB 102; See also M. Alister v. Stevenson, 1932

AC 562.

of duty in the case of tort is considered entirely independently and is not in any way
qualified by contract, subject to the condition that where the duty in tort is impliedly or
expressly qualified by agreement between the plaintiff and the dependent, the plaintiff
cannot ignore the modification of rights brought about by the contract.1 But it should be
noted that such modification cannot affect the claims of third parties against the
defendant or of the plaintiff against third parties.2 However, in such cases the choice
rests with the plaintiff to sue for breach of contract or in tort, and it will not affect the
plaintiff's right in the least whether he sues for a breach of contract or in tort.3
 The distinction between tort and contract is given below in the tabulated form:

Tort     Contract

1. In tort the duty is fixed by 1. In contract the duty is fixed by

the law itself.    the  parties themselves.

2. In tort the duty is towards 2. In contract the duty is towards

every  person of the community specific person or persons.
or society.   

3. A tort is a violation of a right 3. A breach of contract is an

in rem (i.e., of a right vested in infringement  of a right in
some determinate person and personam (i.e., of a right 
available against the world at available against some
large.)    determinate  person or party).

4. A tort is committed against  4. A contract is based on the

or without consent.    consent of the parties.

5. In an action for tort, no 5. In a breach of contract privity

privity needed or is required to between  the parties must be
be proved.    proved.

6. In tort motive is often taken 6. In breach of contract motive is

into account.  not  relevent.

7. In tort measure of damages 7. In breach of contract damages

is different in different are awarded in the form of for
circumstances, which may be pecuniary loss suffered.4  
nominal or exemplary.   

8. A third party can sue for tort
even though there was no
contract  between the person
causing  injury and the person
injured.   
 8. A third party to a contract
cannot sue for breach contract
except in some exceptional cases.

4. Distinction between Tort and Quasi-contract

Quasi contract is based on the principle that if a person is unjustly enriched, he must
return it to the rightful owner. A person is held liable for benefit received by him to
which other person is entitled i.e., if a person has received undue

___________________________
 1. White v. John Warrick & Co. Ltd., (1953) 1 WLR 1285; See also Taylor v. Machester.

2. Cosgrove v. Horsfall, (1946) 62 TLR 140.

3. Marzetti v. William, (1830) 1 B & Ad 415.

4. Except where it is a case of breach of promise of marriage or where the banker dishonours the cheque of

a trader while his funds are in bankers hands. In these two cases the damages may be awarded also for

injury to feeling and repute. See Jogendernath v. New Bengal Bank, 1939 Cal 63; See also Groom v.

Crocker, (1939) 1 KB 194 CA.

advantage to which he is not entitled, it is then his duty to return such profit/benefit to
the person who is so entitled. For example, A a tradesman, leaves goods at B's house
by mistake and B uses it as if it is his own, he shall then be bound to pay A for the
value of goods. Tort and quasi-contract is similar in this respect that duty in each case
is imposed by law. The main distinctions between tort and quasi-contract are:

(1) Quasi-contract gives right only in respect of money whereas tort gives right
to damages as well as grants other remedies also.

(2) Claim under quasi-contract is for liquidated sum of money whereas claim
under tort is always for unliquidated damages.

(3) Rights arising out of quasi-contract is against particular person or persons

but under the law of torts duty is towards persons generally and not to a definite
person.

(4) The duty under torts arises because of breach of primary duty but there is
no primary duty whatsoever under quasi-contract.

5. Distinction between Tort and Breach of Trust

A Trust creates a relationship similar to that created by a contract. However, for

historical reasons Trusts form a different branch of law from contracts and torts. The
main point of difference between the two is that the damages claimed in tort are
unliquidated while they are liquidated in case of the breach of Trust. In fact
compensation given in the case of breach of Trust cannot be termed as damages.
Another point of difference between the two is to regard the whole law of Trusts as a
division of the law of property which is fairly detachable from other parts of the law.
According to Prof. Winfield the administration of Trusts has for centuries been within the
province of a special court which is now known as the Chancery Division of the High
Court. Although questions relating to trusts do incidentally arise in the common law
courts, it is better to take advantage of the fact that they belong more properly to the
jurisdictional enclave of Chancery and to leave them there. That course is more
consistent with their history.1 However, it should be pointed out here that the division
between Chancery and the common law courts is important in England but not in India
as Indian courts have always been exercising a common jurisdiction. In India, therefore,
we are not bothered by this division of functions of a court.

6. Distinction between Tort and Bailment

According to Jones, a bailment is a delivery of goods on a condition, express or implied,

that they shall be restored to the bailor or according to his directions, as soon as the
purpose for which they are bailed has been completed. 2 The person who delivers the
goods is called a "bailor" and the person to whom the goods are delivered is known as
"bailee". Common examples of bailment are hire of goods, gratuitous loan of goods and
pawn or pledge. Since bailment arises in the

_________________________

1. Winfield on Law of Tort, 8th Edn., p. 7.

2. Sir William Jones Treatise on the Law of Bailment, (1781), p. 1. See also Paton Bailment in the Common

Law, p. 3.

agreement of the parties, it is just like a contract. Prof. Winfield is also of this opinion
that the bailee's liability is not tortious because the duty arises from a relation, that of
bailor and bailee, which is created by the parties. He, however, stated that "if the
bailor's claim is necessarily founded upon some specific provision in a contract, then, no
doubt, the bailees liability is not tortious but contractual, but if the bailor's claims rests
upon a breach by the bailee of one of the bailer's common law duties, then his liability is
as much attributable to the law of tort as is the claim of a visit or against the occupier
of premises under the Occupiers' Liability Act." 1 It, therefore, appears that as in the
case of a contractual liability so in the case of the bailment a tortious liability can
coexist with liability arising from bailment. However, the main point of difference
between the two is that in the case of bailment the liability arises from a relation which
is created by the parties themselves and is not a liability created primarily by the law as
in the case of the liability arising in tort.

____________________________

1. Winfield on Tort, 8th Edn., (1967), p. 6.

 
 

 
  

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CHAPTER 3

THE TWO MAXIMS

SYNOPSIS

1. Introduction

2. Damnum Sine Injuria

3. Injuria Sine Damno (or Damnum)

4. Conclusion
1. Introduction

In order to understand "damnum sine injuria" and "injuria sine damno", it would be
better to explain the meaning of the terms "damnum" and "injuria" used in these
maxims. "Damnum" means damage in the sense of substantial loss of money, comfort,
health, service or the like.1 "Injuria" means infringement of a legal right or breach of
legal right. The breach or infringement of a legal right need not be wilful or malicious.
An action will lie if it is tortious. Any unauthorised interference with some right
conferred by law on a person is, therefore, an injury.2

2. Damnum Sine Injuria

The maxim damnum sine injuria means damage or loss without infringement of legal
right. Thus, no action lies for mere damage or loss, however substantial, caused by an
act which does not infringe some legal right of the plaintiff. The oldest English case of
Gloucester v. Grammer School3 is an excellent illustration of the maxim damnum sine
injuria.

In that case the facts were that the defendant had set up a rival school to that of the
plaintiffs with the result that the plaintiffs were required to reduce the tuition fees of
their school substantially as the boys from the plaintiff's school were running away to
that of the defendant's school. It was held that the plaintiffs had no cause of action
against the defendant on the ground that bona fide competition can afford no ground of
action, whatever damage it may cause. Justice Hankford in this case remarked that
"damnum may be (obsque)

______________________

1. See Winsmore v. Green Park, 1745 Wills 577 (581).

2. We are not here concerned with the public rights which all men enjoy in common. Unless in addition to

the injury to the public, a special, peculiar and substantial damage is occasioned to an individual.

3. 1441 YB 11 Henry IV, 47, p. 21.

injuria, as, if I have a mill and my neighbour puts up another mill whereby the profit of
my mill is diminished, I shall have no action against him, although I am damaged."1

But then the question arises, when an act or omission which has resulted in damage is
lawful, that is, when it has caused damage to another in the mere exercise of a legal
right, would an action lie in respect of it even though the act or omission may be
deliberate and the harm or damage caused is malicious? In such cases no action would
lie against the defendant. This was held in the case of Mayor of Bradford v. Pickles.2

The facts were that the defendant was annoyed when the Bradford Corporation refused
to purchase his land in connection with the scheme of water supply for the inhabitants
of the town. In revenge the defendant sank a shaft on his own land which diminished
and discoloured the underground water flowing to the land of plaintiff's i.e., the
Corporation. The Corporation sued the defendant on the ground that his conduct was
unlawful because it was dictated by an evil motive. Rejecting the contention of the
plaintiff, the House of Lords held that the act done by the defendant upon his own land
was not actionable when he was within his legal rights, even though his motive was to
prejudice his neighbour. Lord MacNaghten stated that "the real answer to the claim of
the Corporation is, that in such a case motives are immaterial. It is the act, not the
motive for the act, that must be regarded. If the act, apart from motive, gives rise
merely to damage without legal injury, the motive, however reprehensible it may be,
will not supply that element."3

Another interesting case on this point is that of Mogul Steamship Co. v. McGregor, Gow
& Co.,4 decided by the House of Lords in 1892.

The facts briefly were that A, B, C and D, shipowners, who shipped tea from China to
England, combined together to drive F, a rival shipowner, out of the trade by offering
special concessions to customers who would deal with them to the exclusion of F. The
Plaintiff, F, suffered loss and sued A, B, C and D on the ground of conspiracy.

It was held by the Court of Appeal and the House of Lords that defendants had done
nothing unlawful. The House of Lords held that as the defendants had acted with the
lawful purpose of extending their trade and increasing their profits, even though with
the intention to injure the plaintiffs. The plaintiffs were not entitled to recover the
damage they had suffered by reason of the defendant's acts. "The defendants have
done nothing more against the plaintiffs than pursue to the bitter end a war of
competition waged in the interest of their own trade. Nor there is any element of
illegality in the fact of combination among the defendants, as long as it was for the
purpose of trade and competition."5

_________________________

1. See also Chesimor v. Richerdes, 1859 HL Cas 349.

2. 1895 AC 587.

3. Ibid., p. 590.

4. 1892 AC 25.

5. See also, Allen v. Flood, 1898 AC 1; and Quinn v. Leathem, 1901 AC 495.

This case, thus, establishes the principle that competition with deliberate infliction of
harm affords no ground of action, unless it is done unlawfully. But it should be kept in
mind that a competition in which legal rights of a rival party are infringed, gives rise to
a cause of action. An action will, therefore, lie against a person for causing injury to
another by illegally interfering with the latter's business or employment. Thus, in the
above case if the defendants, besides special rebate and combining together, had
interfered with the plaintiffs calling by illegal means, say for example, by procuring
another to waylay the customers going to the plaintiff's shop or by intimidating them so
that they cease to go there, the defendant would have been liable.

The same rules are followed in India and the best illustration is the case of P.
Seetharamayya v. Mahalkshmiamma1, where four defendants tried to ward-off the flow
of water into their lands from a stream by digging a trench and putting up a bund on
their lands. The fifth defendant also did the same to prevent the flow of water on the
land. As a result of these independent acts of the five defendants, the rainwater now
flowed to the plaintiff's land and caused damage. The plaintiff filed a suit for damages
amounting to Rs. 300 and also requested for a mandatory injunction to demolish the
bunds and to fill up the trenches on the defendant's lands. The High Court of Andhra
Pradesh held that owner of the land has a right to build a fence upon his ground to
prevent damage by the overflow of river, even though as a consequence of this act, the
overflow of water is diverted to the neighbour's land and causes damage. This is a case
of damnum sine injuria and the defendant is not liable.

Another case2 which needs mention is that of Anand Singh v. Ram Chandra.3

The facts were that the defendant built two pucca walls on his land as a result of which
water in between the plaintiffs house and the defendant's house began to flow through
a lane which belonged to the defendant, and it damaged the walls of the plaintiff's
house. The plaintiff brought a suit against the defendant and claimed Rs. 100 as
damages. The Madhya Pradesh High Court held that the plaintiff had no cause of action
as the defendant by building walls on his land had not in any way violated the plaintiff's
right. It was observed by the court that "the plaintiff had not got any easementary right
and is not entitled to restrain the defendant from building walls on his own land. This is
a case of damnum sine injuria …………a case where damage or loss is inflicted without
the act being unlawful. It is an act though harmful to the plaintiff is not wrongful on the
part of the defendant, and no right of action accrues to the plaintiff."

The rule of law is that the exercise of an ordinary right is no wrong even if it causes
damage. A man's use of land, such as building a wall on it is an action to which he is
entitled. He is at liberty to build on his land and unless the other person has right to
stop him from doing so (such as an interference with his

__________________________

1. AIR 1958 AP 103.

2. The other cases are Sarban v. Phodo Sahu, 2 Port 110 (117); Ram Lal Singh v. Lilla Dhary, 3 Cal 776;
 G.K. Chandra Deo v. Maharaja Maaya, MANU/TN/0144/1930 : AIR 1931 Mad 561; Dhannuseo v.

Sitabai, AIR 1949 Nag 166; Dhadphale v. Gurav, (1881) 6 Bom 122: 13 Moore PC 209.

3. AIR 1953 MP 28.

easementary rights) the inconvenience must be suffered. As a price of our free action,
which the law permits, the other person must abide by some measure of inconvenience
from equal freedom of one's neighbour. This is what the phrase damnum sine injuria
means.

3. Injuria Sine Damno (or Damnum)

The maxim injuria sine damno is just reverse to the maxim damnum sine injuria. This
maxim means infringement of private legal right without damage or loss. In such a case
the person whose right has been infringed is entitled to bring an action and may recover
damages from the person who has violated his right. In other words, whenever there is
an infringement of private legal right, the person in whom the legal right is vested is
entitled to bring an action and may recover damages, although he has suffered no
actual loss or harm. The leading and classic English case of Ashby v. White 1 is an
instance of injuria sine damno.

The facts were that the defendant, a returning officer, wrongfully refused to register a
duly tendered vote of the plaintiff who was a qualified voter. The candidate for whom
the vote was tendered was elected and hence no loss was suffered by the rejection of
the plaintiff's vote. The plaintiff brought an action for damages against the defendant.
The court awarded him £ 5 (with costs) on the ground that the violation of the plaintiff's
legal right was an injury for which he must have a remedy and was actionable without
proof of pecuniary damage. Lord Chief Justice Holt laid down three prepositions in
delivering his judgment in favour of the plaintiff:

"(1) That the plaintiff, as burgess of this borough, hath a legal right to give his
vote for the parliamentary election,

(2) That as a necessary consequence thereof, and an incident inseparable to

that right, he mast have a legal remedy to assert, vindicate and maintain it, and

(3) This is the proper remedy which plaintiff hath presumed, being supported by
the grounds, reasons and principles of common laws of England."

In the course of the judgment the learned Chief Justice Holt said, "Every injury imports
a damage though it does not cost the party one farthing. For a damage is not merely
pecuniary, but an injury imports a damage, when a man is thereby hindered of his right
... So, if a man gives another a cuff on the ear, though it cost him nothing, no, not so
much as a little plaster yet he shall have his action, for it is personal injury. So a man
shall have an action against another for riding over his ground, though it does him no
damage for it is invasion on his property."2

The principle stated in Ashby v. White has been followed in India in toto in the case of
Kali Kishen Tagore v. Jadoo Lal Mullick.3

_____________________________

1. (1703) 2 Lord Rayam 938.

2. Ibid., p. 955.

3. 61 A 190. See also S. Das v. U. Singh, 21 Lah 191; R. Phul v. M. Lal, 24 WR 97.

The plaintiff and defendant were proprietors of opposite banks of a water channel. The
plaintiff sued the defendant for an injunction for the demolition of a wall which the
defendant had built for the protection of his own land, but which encroached to the
extent of about 6 feet on to the bed of the channel. The High Court of Calcutta held that
although no actual loss had occurred to the plaintiff, yet he was entitled to a decree as
he had succeeded in showing that some damage might hereafter arise from an
encroachment. On appeal to the Privy Council, the decision of the Calcutta High Court
was reversed on the ground that as the bed of the water channel did not belong to the
plaintiff but to the Government and that, as he had neither claimed nor proved that he
was entitled to the flow of the water as it had been accustomed to flow, or that flow was
seriously and sensibly diverted as to be an injury to his rights, he had failed to show
either damnum or injuria and, therefore, had no right of action. Their Lordships
observed, "There may be, where a right is interfered with, injuria sine damno is
sufficient for an action; but no action can be maintained where there is neither damnum
non injuria."1

It should be pointed out here that in the case of Ashby v. White, the defendant had
maliciously infringed the private legal right of the plaintiff and so an action was held
maintainable against the defendant. But where a Returning Officer, without any malice
or any improper motive, in exercising his judgment, honestly refuses to receive the vote
of a person entitled to vote at an election, no action will lie. This was laid down in the
English case of Tozer v. Child 2 and it has been followed by the Bombay High Court in
the case of Chunni Lal v. Kripa Shanker,3 where it was held that "if the refusal is not in
good faith, which implies due care and diligence, the person refusing to register the
vote will be liable."

A case from the Allahabad High Court provides another suitable illustration. 4 The plaintiff
(Asharfi Lal) was entitled to be entered as an elector upon the electoral roll. His name
was wrongfully omitted from the electoral roll and as such he was deprived of his right
to vote. On an action by the plaintiff it was held by the Court that if any person entitled
to be on the electoral roll of any constituency is omitted from such roll so as to be
deprived of his right to vote and so as to give the returning officer an adequate ground
for refusing him the right to vote on election day when the matter has to be decided
summarily, and that refusal or omission from the roll, as the case may be, turns out on
investigation to be wrongful, he has suffered a legal wrong and for which an action lies
against a person depriving him of his right.5

4. Conclusion

In concluding this Chapter it is to be pointed out that damnum sine injuria is the
converse of injuria sine damno. Just as there are cases in which loss is not

__________________________

1. 61 A 195.

2. (1886) 7 FL and BL 377.

3. (1906) 8 Bom LR 838.

4. Municipal Board of Agra v. Asharfi Lal, (1921) 44 All 202.

5. See also, Surat Municipality v. Chunni Lal, (1906) 8 Bom LR 209; Bhawani v. Anantha Kamthi, (1916) 31

MLI 556.

actionable as a tort (damnum sine injuria), so conversely there are cases in which an
act is actionable although it has caused no loss at all (injuria sine damno). 1 Sir Arthur
Underhill2 has very beautifully stated these two maxims in these words,"……all that the
maxims come to, therefore, is this: that no action lies for mere damage (damnum),
however substantial, caused by some act which does not violate a legal right but that an
action does lie in certain cases of interference with another's legal private right, even
where it causes no actual damage, e.g., a trespass." 3 In other words the result of the
two maxim is, that there may be certain moral wrongs, which may cause great loss or
damage to another, but law gives no legal remedy; and, on the other hand, there are
certain legal wrongs which may cause even no loss or damage to another, yet the law
provides a legal remedy although there is only a violation of private legal right.

The mathematical formulae4 of the two maxims are given as under:

Act + Loss _ Injury = Damnum sine injuria.

Defendant's act + Plaintiff's loss _ Plaintiff's injury = Damnum sine injuria.

Defendant's act + Defendant's malice + Plaintiff's loss _ Plaintiff's injury =

Damnum sine injuria.

Act + Injury = Injuria sine damno.

 Defendant's act + Plaintiff's Injury _ Plaintiff's loss = Injuria sine damno.

Defendant's act + Plaintiff's Injury + Plaintiff's loss = Injuria sine damno.

____________________________

1. See Anand and Shastri The Law of Torts, 2nd Edn., (1967), p. 51.

2. Underhill's Law of Torts, 15th Edn., (1946).

3. Ibid., p. 4.

4. Plus (+) indicates the presence of a thing. Minus () indicates the absence of a thing.

Injury indicates the infringement or violation of a private legal right.

 
 

 
 

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CHAPTER 4

RELEVANCE OF MALICE, MOTIVE, INTENTION AND FAULT IN LAW OF TORTS

SYNOPSIS

1. Malice

2. Motive

3. Malfeasance, Misfeasance and Non-feasance

4. Intention and Recklessness

5. Fault

6. Criticism of the Rule

1. Malice

Motive and malice are two distinct words used differently in the law of torts, but they
are entangled with each other. Motive means ulterior intent or inner drive which
signifies the reason for a man's conduct. It is actually a chief moving force and moves
the man towards a particular action. Intention signifies full advertence in the mind of
the defendant to his conduct, which is in question, and to its consequences, together
with desire for those consequences.1 When an act is done with bad intention then it is
called malice. Malice, therefore, means evil intent. Malice for a lay man or in common
acceptance means illwill against a person but in its legal sense a wrongful act, done
intentionally, without just cause or excuse. Thus malice is used in two quite different
senses in the law of torts, namely, malice-in-fact and malice-in-law. When we take the
meaning of malice in its ordinary sense, such as, illwill, spite or hatred, then we call it
as malice-in-fact. Malice-in-law means a wrongful act done intentionally without just
cause or excuse. Thus, malice-in-law is implied in every case where a person has
inflicted injury upon another in contravention of the law, without just cause or excuse.
Malice-in-fact is generally relevant in the torts of defamation on a privileged occasion,
malicious prosecution, injurious falsehood, deceit and conspiracy. For example, in an
action of defamation if the defendant pleads qualified privilege, the plaintiff can defeat
him by proving malice-in-fact. Malice-in-fact is thus not entirely irrelevant in the law of
torts.2

_____________________________

1. Winfield on Tort, 8th Edn., (1967), p. 16. The interpretation of this definition is often technical. See

elaborate discussion of "intention" in Chapter 3, supra.

2. Malice is essential in the torts of deceit, conspiracy, malicious prosecution and injurious false-hoods.

2. Motive

Motive, on the other hand is generally irrelevant in the law of torts 1, and this general
irrelevancy of motive (bad or good) was affirmed by the House of Lords in Bradford
Corporation v. Pickle,2 where the defendant, in order to take revenge, sank a shaft on
his land with the result that the water below the plaintiff's land was discoloured and
diminished. The defendant was held not liable. Lord Macnaghten said: "It is the act, not
the motive for the act that must be regarded. If the act, apart from motive, gives rise
merely to damage without legal injury, the motive, however reprehensible it may be,
will not supply that element."3

The same rule has been followed in India and the best illustrations to this is the case of
Nankee v. Ah Fong,4 where it was observed by the court that the motive of the person
doing the act is immaterial. If it is a lawful act, however ill the motive might be, he has
a right to do it. If it is an unlawful act, however good his motive might be, he would
have no right to do it. Motive and intention in such a question is absolutely irrelevant."

It, therefore, means, as a general rule that an act which is lawful cannot become
unlawful merely because it is done with any motive. That is to say, if conduct is
unlawful, good motive will not exonerate the defendant, 5 and that if conduct is lawful, a
bad motive will not make him liable.

3. Malfeasance, Misfeasance and Non-feasance

Malfeasance refers to the Commission of an illegal/unlawful Act. It generally applies to

those unlawful acts, such as trespass, which are actionable per se and do not require
proof of intention or motive. It is also used in reference to people in public
office.6 Misfeasance refers to improper performance of a lawful act, such as, negligence.
Non-feasance, which is closely related to misfeasance, is the failure to perform a duty
which he or she is legally obligated to do. In Proksch v. Bottendorf7 the Supreme Court
of Lowa adopted these words-Malfeasance, Misfeasance and non-feasance. Malfeasance
is the doing of an act which a person ought not to do at all, Misfeasance is the improper
doing of an act which a person might lawfully do and non-feasance is the omission of an
act which a person ought to do.

______________________________

1. Motive becomes relevant in the tort of defamation when qualified privilege or fair comment is pleaded.

The defence of qualified privilege is available if the statement was made in good faith. The presence of

malice or evil motive negates good faith. In such a case the defence of qualified privilege will not be

available to the defendants. Similarly in the case of personal discomfort an unlawful motive may turn an

otherwise lawful act into nuisance—Palmer v. Loder, 1962 CLY 2333; Hollywood Fox Farm Ltd. v. Emnet,

1936 KB 468; Christie v. Davey, (1893) 1 Ch 316. Malice or bad motive may also aggravate damages.

2. 1895 AC 587.

3. Nan Kee v. Au Fong, AIR 1935 Rang 73: ILR 13 Rang 175.

4. Ibid., p. 75. See also other Indian cases: V.M. Joshi v. T.L.H. Smith Pearse, AIR 1949 Nag 362; M.Z.
Rahim v. S.N. Mukhopadhyaya, MANU/WB/0397/1934 : AIR 1934 Cal 752; Collector of Sea

Customs, Madras v. P. Chidambaram, ILR 1876 (1) Mad 89. For a summary of these cases see also: B.S.

Sinha An Introduction to Law of Tort through Indian Cases, pp. 1011.

5. To this, however, defences like necessity and private defence are exceptions, for they defend to a certain

extent on a good motive on the part of the defendant.

6. See also, Jai Laximi Salt Works (P) Ltd. v. State of Gujrat, MANU/SC/0692/1994 : (1994) 4 SCC

1.

7. 218 Lowa 1376 (1934); See also Six Carpenter case, (1610) 8 Co Rep 146a; Elias v. Pasmore, (1934) 2

KB 164 which have been quoted at p 119 infra.

4. Intention and Recklessness

Intention is the state of mind. When the wrongdoer intends to commit wrong he has full
knowledge of the consequences of his act, which he wants to achieve. Intention is
different from motive in the sense that motive is the ulterior object for which the act is
done whereas intention is the immediate object. Generally intention is not an essential
condition for liability in tort. The purpose of tort is not to punish the wrongdoer but to
award compensation to the injured. A person is deemed to know the natural
consequences of his act. If A is injured by an act of B then B will be liable even though
he has no intention of harming A. In Wilkinson v. Downston1 the defendant jokingly told
the plaintiff that her husband had met with an accident, his legs were broken and was
hospitalized. The plaintiff suffered nervous shock and got seriously ill. She sued the
defendant for damages. The court held that the defendant knew the natural
consequences of his act. He was held liable even though he intended it or not. Thus
intention as a rule is not an essential condition of tort in most of the cases e.g.
nuisance, copyright, injury to person or property. It is only is exceptional cases where it
is required to prove e.g. in assault, conspiracy, malicious prosecution, defamation
where fair comment or privilege as defence is pleaded. It may be noted that in
negligence there is no intention or desire for the consequences. But when negligence is
so severe that it amounts to recklessness or gross negligence then it is very often
assimilated with intention.2

5. Fault

To ascertain the liability of a person his state of mind at the time of commission of
offence is relevant under various branches of law of torts like battery, false
imprisonment, assault etc. But there are many cases in which the mental element is
irrelevant in determining liability of the wrong doer. In such cases he is liable even
though he was not negligent or had committed with no wrong intention or was innocent
or there was mistake on his part. Thus under strict liability, absolute liability and
vicarious liability, a person is liable even when there was no fault on his part. In Rylands
v. Fletcher3 it was held that if a person makes non natural use of his land and it escapes
and causes damages to others, he will be liable for it. He cannot plead in defence that
there was no fault on his part or that he was not negligent for collecting the thing or its
escape. Similarly a person will be held liable if he keeps dangerous animal on his land
and it escapes. The principle of absolute liability imposes absolute liability on hazardous
and inherently dangerous industries for the harm resulting from the hazardous or
inherently dangerous activity4. The master is liable for the fault committed by his
servant during the course of his employment in vicarious liability. Various statutes e.g.
Factories Act, Workmen Compensation Act etc., imposes liability on the employer even
if the fault element is absent.

__________________________

1. (1897) 2 QB 57.

2. See also Clerk & Lindsell Torts, 15th Edn., p. 44.

3. 1868 LR 3 HL 330.

4. M.C. Mehta v. Union of India, MANU/SC/0092/1986 : AIR 1987 SC 1086.

6. Criticism of the Rule

The above rule, as stated by the House of Lords in the case of Pickle, is not very
satisfactory. It would mean that in Indian law which follows English common law, greed,
illwill and spitefulness are permitted to reign supreme. On this point our law is
unsatisfactory as compared to civil law system of several European States. Abuse of
rights has generally been prevented in these systems. But with us there is nothing to
prevent a man from capriciously setting fire to his own oilwell or cornfield or blocking up
his neighbour's prospect by a `spite' fence etc., which does not happen to fall within
some definite tort or crime. Supremacy of `motive' or `malice' should, therefore, be
discarded in our system. The law must be amended by drawing a distinction between
abuse of private rights which directly injures the public (e.g., setting fire to a cornfield),
and abuse of right which primarily injures one's neighbours (e.g., Mr. Pickle's conduct).
The first category of cases ought to fall within the sphere of criminal law and the second
within the law of torts. The legislature might make certain things of public importance
such as corn, petrol, kerosene, coal etc., and make capricious waste of them a criminal
offence. On the other hand, it might enact a law that where an injury is done to another
person solely from an evil motive, the wrongdoer should be liable in tort. No doubt,
there is a risk of undue interference with individual freedom in either of these suggested
reforms, but the courts should be trusted to see that they should not unduly prejudice
the freedom of the man.1

________________________

1. See also, Winfield on Tort, 8th Edn., (1967), p. 21-22. See also, Gutteridge, SCLJ 31; Friedinann Legal

Theory, 4th Edn., (1960), p. 507; Allen Legal Duties, (1931), pp. 95-120.

 
 

 
 

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CHAPTER 5

GENERAL PRINCIPLES OR CONDITIONS WHICH NEGATIVE TORTIOUS

LIABILITY: GENERAL DEFENCES

SYNOPSIS

1. Introduction

2. Maxim: Volenti non fit injuria

2.1. Knowledge of risk

2.2. Free consent

2.3. Consent to illegal act

2.4. Consent of minors or insane persons

2.5. Breach of statutory duty

2.6. Unfair Contract Terms Act, 1977 (England)

2.7. Application of the maxim

2.8. Exceptions to the application of the maxim

3. Act of God (Vis Major or Damnum Fatale)

4. Inevitable Accident

5. Mistake

6. Necessity

7. Private Defence

7.1. Defence of person

7.2. Defence of property

8. Statutory Authority

9. Act of State

10. Judicial Acts

11. Officers of the Court

1. Introduction

In the preceding chapters we have discussed the principles determining the tortious
liability of a person. But now we will discuss the various general principles which
negative the tortious liability of a person. It is understood that a plaintiff who fails to
prove the necessary ingredients of a particular tort on which he relies will fail in his
action. Even if the plaintiff does prove these ingredients, he may still fail in his action if
the defendant justifies his tort on the basis of principles which negative tortious liability.
However, it may be pointed out here that we will discuss in this Chapter only general
principles or defences which apply more generally throughout the law of tort and not
those particular defences which apply to particular torts. They have been discussed in
their appropriate chapters.

2. Maxim: Volenti non fit injuria

It is a well settled principle of law that no man can sue for a tort to which he had
consented either expressly or impliedly. For example, injuries received in the course of
a lawful game or sport are not actionable. This principle has been summarised in the
Latin maxim "volenti non fit injuria " which, if translated, means "voluntarily suffered
injury is not fit for action." In other words, no breach of a legal right is committed
against one who is a wilting party, or, harm suffered voluntarily does not constitute an
injury and is not actionable. Thus, there are two basic ingredients in constituting the
maxim `volenti non fit injuria' which the defendant must prove in order to justify his
tort. They are:

1. The plaintiff had the knowledge of risk

2. The plaintiff with his free consent ran the risk of harm.

2.1. Knowledge of risk

The plaintiff must know the nature of the act or work and its extent of danger or
risk. If he does not know, or reasonably cannot understand the nature and
extent of risk with the performance of an act, it will be presumed that he had no
knowledge of the risk. Here the emphasis is on the knowledge of the plaintiff
and if the knowledge of the risk is missing, the defence of volenti non fit injuria
will not be available to the defendant.

2.2. Free consent

After having the knowledge of the nature and extent of risk attendant with the
work or act, the plaintiff must give his consent to run the risk of harm. Of
course, the consent must be given voluntarily and with his free will. However, if
the plaintiff has given his consent under undue influence, coercion, fraud,
misrepresentation, mistake or the like, then it will not be treated as a free
 consent.

Thus, it has been seen that there must be both knowledge and free consent of
the plaintiff in constituting the maxim volenti non fit injuria. But it may be
pointed out here that in case the consent is free there are further limitations on
it.

2.3. Consent to illegal act

It is a general principle of criminal law that the consent of the victim affords no
defence to the accused charged with a criminal offence because "no person can
license another to commit a crime."1 But then the question arises whether

________________________

1. R. v. Donovan, (1934) 2 KB 498.50, per Swift J.

there are cases in which the defence of volenti non fit injuria is excluded in the
law of tort because of the illegality of the act assented to. Prof. Winfield says,
"...certainly it cannot be true that the maxim is excluded whenever the act
constitutes a crime as well as a tort, for every assault is criminal, and so are
some libels, and yet it is possible, by assent, to negative tortious liability for
many kinds of assault and libel." Winfield was, however, of the opinion that
"perhaps it would be correct to say that wherever the act is contrary to public
policy, volenti non fit injuria is inapplicable, but public policy is such a vague
conception that this does not help much." 1 It is not feasible to lay down any test,
but it can be said that the act to which consent is given must not in itself be
illegal and against public policy, e.g., fighting with bare fist, a kicking match or,
a duel with sharp swords.

2.4. Consent of minors or insane persons

Consent of minors or insane persons is generally not regarded as consent.

However, consent of the guardian is considered sufficient in the case of minors
and insane persons. Prof. Winfield observes in connection with the consent by
minors in these words: "Children of tender years frequently protest vigorously
against requisite medicine or surgery, but the practitioner has sufficient legal
protection in the consent, on behalf of the child, of its parent or guardian.
Presumably a similar rule applies to insane persons."2

2.5. Breach of statutory duty

In several cases as under the Factories Act, many duties have been imposed
upon the employer. If the employer commits a breach of statutory duty, he is
liable regardless of the consent of the employee. Thus, consent to a breach of
 statutory duty is not acknowledged. The reason of the rule has been stated by
Will J. in the case of Baddeley v. Granville3 that "the law will not permit an
employer to make it a term of his servant's contract that the latter shall connive
at a breach of his master's statutory obligations which is not only intended for
his benefit only but also for the benefits of others." It is now, therefore, a well
settled rule that the defence of volenti non fit injuria is not applicable to an
action where there is a breach of statutory duty otherwise known as statutory
negligence.4

But where a workman contravenes statutory provisions and also employer's

orders and thereby causes injury to himself, the maxim volenti non fit injuria
applies. An illustration on this point is the case of Imperial Chemical Industries
v. Shatwell. The facts were that two brothers, Shatwell and James, had been
working in the defendant's quarry. They tried to test some detonators which was
against the statutory provisions and also against the employer's orders. The test
resulted

_____________________

1. Winfield on Tort, 8th Edn. (1967), pp. 747748.

2. Winfield on Tort, 6th Edn., p. 33.

3. (1887) 19 QBD 647.

4. (1933) 2 KB 660. In such cases, no defence is open to an employer except that of contributory

negligence and, that too, when it is a substantial cause of the plaintiff's negligence. See also, Simson v.

S.T. Ltd., (8940) 1 KB 342.

in explosion causing injury to Shatwell. He filed the suit against the defendants
on the ground that his brother was equally responsible with him for the accident
and that the defendants were vicariously liable for his brother's conduct. The
defendants pleaded volenti non fit injuria. The plaintiff argued that the defence
of volenti non fit injuria is not applicable when there is a breach of statutory
obligation. Rejecting the plea of the plaintiff, the House of Lords granted the
defence of volenti non fit injuria and held "I find no reason at all why the facts
that these two brother's agreed to commit an offence by contravening a
statutory prohibition imposed on them as well as agreeing to defy their
employer's order should affect the application of the principle volenti non fit
injuria either to an action by one of them against the other or to an action by
one against their employer based on his vicarious responsibility for the conduct
of the other."

2.6. Unfair Contract Terms Act, 1977 (England)

 In England, a new development took place in 1977 when the Parliament passed
Unfair Contract Terms Act, which limits the right of a person to restrict or
exclude his liability resulting from his negligence by a contract term or by notice.
Section 2 of the Unfair Contract Terms Act, 1977 provides:

(1) A person cannot by reference to any contract term or to a notice

given to person generally or to particular persons exclude or restrict his
liability for death or personal injury resulting from negligence.

(2) In the case of other loss or damage, a person cannot so exclude or

restrict his liability for negligence except in so far as the terms or notice
satisfies the requirement of reasonableness.

(3) When a contract term or notice purports to exclude or restrict his

liability for negligence, a person's agreement to or awareness of it is not
of itself to be taken as indicating his voluntary acceptance of any risk.

Thus, section 2 of the Unfair Contract Terms Act, 1977 is another limitation on
the maxim `volenti non fit injuria'. According to subsection 1, defendant will be
liable for death or personal injury caused by his negligence even if he has
obtained consent of the plaintiff by making a contract or notice to that effect.
Subsection 2 provides that where the damage to the plaintiff is other than
personal injury or death caused by defendant's negligence, the defendant can be
excluded from liability only if the terms of contract or notice satisfy the
requirement of reasonableness. In such a case subsection 3 further provides
that merely agreement or notice is not enough to exclude or restrict the liability
of the defendant. This means that something more is needed, like for instance,
further evidence about the genuineness of plaintiff's voluntary consent or
voluntary assumption of the risk.

2.7. Application of the maxim

It has been seen that the maxim volenti non fit injuria is based on principles of
justice and good sense because a man cannot complain of harm to which he has
consented with full knowledge and of his free will. This maxim comes into play in
daily life. It has a double application. In the first place, it applies to intentional
act which would otherwise be tortious. The best illustration on this point is the
case of Illot v. Wilkes.1

The defendant placed spring guns in a wood on his ground for the protection of
the game. The plaintiff with full knowledge that there are spring guns,
trespassed on the land of the defendant and was injured. He sued the defendant
on the ground that the defendant committed a tort against him by exceeding
right of private defence. It was held by the court that although the defendant
 exceeded his right of private defence and was therefore a wrongdoer, yet the
defendant will not be liable, for, the plaintiff had notice of the gun and "he
having willfully courted the danger himself his case fell within the maxim volenti
non fit injuria."

But the case would be different where a trespass is committed having no

knowledge of the existence of the guns. In such a case volenti non fit injuria will
be inapplicable. This was laid down in the case of Bird v. Halbrook.2

The defendant, having had flowers stolen from his garden, had placed a spring
gun in the garden for future protection. On 21st March, 1825 at about 6 p.m. a
peahen belonging to the plaintiff had escaped, and finally alighted in the
defendant's garden. The plaintiff, a boy, in search of his strayed away fowl and
having no knowledge of the existence of the gun, got over the garden wall, and
coming into contact with the gun was injured. The court held the defendant
liable to make compensation for the injuries to the plaintiff as the maxim,
`volenti non fit injuria' was inapplicable in the case.

The maxim `volenti non fit injuria' applies, in the second place, where one
consents to run the risk of harm which would otherwise be tortious or
actionable.

The consent to a risk may be express or implied. Where the consent is in

express terms, the injured person cannot maintain an action. For example, if I
give my consent to a surgeon to operate my leg, I cannot maintain an action for
the tort of battery; or if I give my consent to you to publish a defamatory
statement against me, I cannot maintain an action for the tort of defamation; or
if I give my consent to you to walkover on my land, I cannot maintain an action
for trespass. In all these examples the maxim `volenti non fit injuria' is
applicable and I cannot maintain an action since I have given my express
consent with full knowledge of the risk. Another illustration on this point is the
case of Maung Sein v. Emperor.3

Mrs. Ma Thin, the wife of Maung Sein, died at the birth of a child. She was
attended at the birth of the child by an unqualified midwife. Ma Thin with full
knowledge and of her own will consented to being attended by the unqualified
midwife. On an action for damages, it was held by the court that the maxim
volenti non fit injuria applies and that the plaintiff was not entitled to damages.

So far we have discussed the cases of express consent, but there may be cases
where a person has taken the risk by his implied consent. The inference of

________________________________
1. (1820) 3 B & Ald 304.

2. (1828) 4 Bing 628.

3. AIR 1935 Rang 471.

implied consent, depends on the facts and circumstances of each case. For
example, A lends his gun to B and informs B that one of the barrels of the gun is
defective. During the course of shooting, B got injury. Here B cannot succeed
because he with full knowledge of the risk impliedly gave his consent. The
maxim `volenti non fit injuria' applies.

It does not follow that mere knowledge of the risk always amounts to consent.
The maxim is `volenti non fit injuria' and not 'scienti non fit injuria'. In other
words it does not follow that a person always assents to a risk merely because
he knows of it. It was so held in the case of Thomas v. Quartermaine 1 where
Bowen L.J. refused to identify, as a matter of course, knowledge of a risk with
acceptance of it.

The facts were that the plaintiff worked in the defendant's brewery. He tugged at
a board with a view to remove it from the top of a boiling vat to which the board
served as a lid. The lid came off suddenly and fell into a cooling vat which was
sunk in the floor about three feet away from the boiling vat. It was not
adequately fenced and being full of scalding liquid, the plaintiff fell down in the
boiling vat and was severely injured. He brought an action for reparation against
his employer. It was found as a matter of fact that the plaintiff had full
knowledge of the danger from the run of the cooling vat not being fenced, and
that too for many months. The majority of the Judges of the Court of Appeal
held that the action was not maintainable. Bowen L.J., who was one of the
majority said: "It is no doubt true that the knowledge on the part of the injured
person which will prevent him from alleging negligence against the occupier
must be knowledge against such circumstances as lead necessarily to the
conclusion that the whole risk was voluntarily incurred. The maxim, be it
observed, is not `scienti non fit injuria' but `volenti'. It is plain that mere
knowledge may not be a conclusive defence. There may be perception of the
existence of the danger without comprehension of the risk as where the
workman is of imperfect intelligence or though he knows the danger, remains
imperfectly informed to its nature and extent. There may again be concurrent
facts which justify the enquiry whether the risk, though known, was really
encountered voluntarily." After stating the principle as to when knowledge may
amount to consent, Bowen, L.J. remarked: "...knowledge, as we have seen, is
not conclusive where it is consistent with the facts that from its imperfect
character or otherwise, the entire risk though in one sense known was not
voluntarily encountered, but here on the plain facts of the case, knowledge on
 the plaintiff's part can mean only one thing. For many months the plaintiff, a
man of full intelligence, had seen this vat—known all about it—appreciated its
danger, elected to continue working near it. It seems to me that the legal
language has no meaning unless it were held that knowledge such as this
amounts to a voluntarily encountering of the risk."

It should, however, be noted that in the present case the defendant did not
provide a safe place of working and therefore was negligent. Yet the court held
that the defendant had not been guilty of negligence or had not been in breach
of the duty which he as an occupier of premises owed towards a person lawfully

______________________

1. (1887) 18 QBD 685.

on the premises, for, knowledge on the part of the plaintiff, which prevented him
from alleging negligence, was such as would lead necessarily to the conclusion
that the whole risk was voluntarily incurred. However, the general principle as
stated by Bowen, L.J. that mere perception of the existence of danger does not
amount to consent unless there is comprehension of the risk was never
attacked, but the actual decision of the court was subject to criticism 1 and was
not even accepted by the House of Lords in another important and leading case
of Smith v. Baker & Sons.2

Smith was in the employ of Baker and Sons. He worked in a cutting on the top
of which a crane often jibbed heavy stones over his head while he was drilling
rock face in the cutting. Both he and his employers were aware that there was a
risk of the stones falling, but no warning was given to him of the movement at
which any particular jibbing commenced.

It was argued on behalf of the defendant that the principles enunciated by Bown
L.J., in the case of Thomas v. Quartermaine should be extended to this case and
that since this case is similar to that case, the defendants should not be held
liable. But the House of Lords held that the defendants were liable. Lord
Herschell admitted that "where a person undertakes to do work which is
intrinsically dangerous, notwithstanding that reasonable care has been taken to
render it as little dangerous as possible, he no doubt voluntarily subjects himself
to the risks inevitably accompanying it, and cannot, if he suffers, be permitted to
complain that a wrong has been done to him, even though the cause from which
he suffers might give to others a right of action." But he added, "where a risk to
the employed, which may or may not result in injury, has been created or
enhanced by the negligence of the employer, does by the mere continuance in
service, knowledge of the risk preclude the employed, if he suffers from such
negligence, from recovering in respect of his employer's breach of duty? I
 cannot assent to the proposition that the maxim, `volenti non fit injuria', applies
to such a case, and that the employer can invoke its aid to protect him from
liability for his wrong. " Then his Lordship referred to the case of Thomas v.
Quartermaine and disapproved its decision by stating, "if the effect of the
judgment (i.e., Thomas' case) be that the mere fact that the plaintiff, after he
knew the condition of the premises, continued to work and did not quit his
employment, afforded his employer an answer to the action, even though a
breach of duty on his part was made out, I am unable, for the reasons I have
given, to concur in the decision."

The case of Smith v. Baker & Sons, thus, more precisely laid down the rule of
implied consent that where the plaintiff undertakes to do a work which is
intrinsically dangerous, he consents to the risk of harm inevitably accompanying
it, although reasonable care has not been taken by the defendant to render it as
little dangerous as possible. But where the work is dangerous and the risk to the
plaintiff, which may or my not result in an injury, has been created or, enhanced
by the negligence of the defendant, the plaintiff will not be deemed to have
given his consent. For example, one who has agreed to take part in an operation

______________________

1. See Pollock on Torts, p. 131. See also Salmond on Torts, p. 38.

2. 1891 AC 325.

necessitating production of fumes injurious to health would have no cause of

action in respect of bodily suffering or inconvenience resulting therefrom, though
another person residing near to the place of these operations might well
maintain an action if he sustained such injuries from the same cause. Or, for
example, suppose that owing to a defect in the machinery at which the plaintiff
is employed, the plaintiff cannot perform the required operation without certain
loss of a limb. Here, although the defendant is negligent in not providing a
suitable machinery, yet the plaintiff cannot recover damages if he performs the
operation and is injured. It should be noted that here the work is intrinsically
dangerous and therefore the plaintiff is deemed to have given his consent.
Compare it with the case of Thomas v. Quartermine, and Smith v. Baker & Sons
where the risk may or may not result in an injury, and the risk has been created
or enhanced by the negligence of the employer.

It may be pointed out here that it is not only in cases of employer and workmen
that the defence of volenti non fit injuria is limited by the rule that `sciens' is not
`violens' but also in other cases. The case of Dann. v. Hamilton is another
illustration on this point.1
 Miss Dann was the passenger in the car of Mr. Hamilton. While entering the car
she knew that Hamilton was under the influence of drink. Knowing his conditions
she could have travelled by an omnibus or taxi, but chose to remain in the car.
There was an accident due to the negligence of Hamilton, the driver of the car,
which resulted in injuries to Miss Dann. The question in this case was, whether
the maxim, `volenti non fit injuria' is applicable? Asquith J., held that the maxim
did not apply and that she could recover damages on the ground that the
plaintiff, "by embarking in the car with knowledge that through drink the driver
had materially reduced his capacity for driving safely, did not impliedly consent
to, or absolve the driver from liability for, any subsequent negligence on his part
whereby the plaintiff might suffer harm."... "There may be cases in which the
drunkenness of the driver at the material time is so extreme and so glaring that
to accept a lift from him is like engaging in an intrinsically and obviously
dangerous occupation, intermeddling with an exploded bomb or walking on the
edge of an unfenced cliff. It is not necessary to decide whether in such a case
the maxim volenti non fit injuria would apply, for in the present case I find as a
fact that the driver's degree of intoxication fell short of this degree. I therefore,
conclude that the defence fails, and the claim succeeds."2

___________________________

1. The others are: Rowle v. Regis Corporation, 1944 KB 476; Read v. Lyons and Co. Ltd., 1945 KB 216:

194 AC 156; Baker v. Hopkins & Sons Ltd., (1956) 1 WLR 966 CA.

2. Prof. Goodhart has criticised this case on the ground that since the plaintiff was guilty of contributory

negligence, the judgment should have been entered for the defendant. This point was, however,

subsequently answered by Asquith J. (See 55 LQR p. 184) that the plea of contributory negligence was not

raised (in Dann v. Hamilton) even though he encouraged the defendant's counsel to ask for leave to amend

by adding that plea. See (1953) Law Quarterly Review at p. 31. Referring to this aspect in Dann v.

Hamilton, Denning L.J. [in the case of Slater v. C.C. Co. Ltd., (1956) 2 QB 264 (271)] also said: "In so far

as he (Asquith, J,) decided that the defence of `volens' did not apply, I think the decision was quite correct.

In so far as he suggested that the plea of contributory negligence might have been available, I agree with

The same principles have been followed in India. This is illustrated by the case of
Secretary of State v. Rukhmini Bai.1

The Plaintiff's husband, a trolly-man in the service of G.I.P. Railway was pushing
the trolly under the orders of the then Permanent Way Inspector, along with
three others. The deceased was bound to obey the orders. Due to the negligence
of another employee of the railway he was killed in a collision when the trolly
was overtaken by a train in a tunnel. It was held by the court that the defence of
volenti non fit injuria would not apply as the servant was acting under orders.
Niyogi, J. further observed that "though the courts in India are, in the absence
of any express provision of law applicable to any particular case, empowered to
 invoke the aid of common law on considerations of justice, equity and good
conscience yet this can only refer to the common law which is actually enforced
by the courts in England."

Another illustration is the case of South Indian Industries Ltd., Madras v.

Alamelu Ammal.2

The defendant used to break cast iron by dropping it from a height of 35 feet
with the inevitable result that pieces of iron flew about to distances of four to
five yards. They had put up a screen at a distance of about 15 feet which was
obviously so inadequate that pieces of iron were habitually thrown out of the pit.
They had issued warnings to persons near by, but they did not issue warnings to
workmen at a distance, to go on working at the risk of being hit. The plaintiff
who was standing at about 80 feet was hit by a piece and fatally injured. It was
found that the defendants did not take sufficient care and, therefore, they were
guilty of negligence. The defence of the maxim, `volenti non fit injuria', pleaded
on behalf of the defendant was also held inapplicable. It was observed by the
court that "the defendant can successfully plead the maxim only when he proves
that the person injured knew of the danger, appreciated it and voluntarily took
the risk. That the defendant had some knowledge of the danger is not sufficient.
A man cannot be said to have voluntarily undertaken a risk the extent of which
he does not appreciate."

2.8. Exceptions to the application of the maxim

Rescue cases are exceptions to the application of the of the maxim `Volenti non
fit injuria'. The reason for this exception has been very well explained in an
American case of Wagner v. International Railway, 3 where a passenger fell
down 

_____________________________

him." From this it appears that if the plea of contributory negligence would have been raised in Dann v.

Hamilton, perhaps the maxim `volenti non fit injuria', had not been even considered. This has been

illustrated in the recent case of Dawrant v. Nutt, where the plaintiff was a passenger in her husband's

motorcycle combination and was injured in a collision which was partly caused by the defendant's

negligence. It was dark at the time of collision and the plaintiff knew that the lighting system of the

motorcycle combination was out of order. Although Hamilton's case was cited, and although Stable J., held

that the plaintiff had been guilty of contributory negligence in knowingly travelling in the unilluminated

combination, he awarded the plaintiff a proportion of the damages. Volenti non fit injuria was not even

considered. (1961) 1 WLR 253.

1. MANU/NA/0229/1936 : AIR 1937 Nag 354.

2. 1923 Mad 565.

3. (1921) 232 NY 176.

 from the railway car due to negligence of railway company. When the train
stopped, his companion got down and went back to search for his friend. There
was complete darkness. The rescuer missed his footing and fell down from the
bridge resulting in injuries to him. Holding the railway company liable, Cardozo,
J. said: "Danger invites rescue. The cry of distress is the summons to relief. The
law does not ignore those reactions in tracing conduct to its consequences. It
recognises them as normal. The wrong that imperils life is a wrong to the
imperiled victim. It is a wrong also to the rescuer ... The risk of rescue if only it
is not wanton, is born of the occasion. The emergency begets the
man."1 Similarly in an English case of Brandon v. Osborne, Garrett and Co.
Ltd.2 Swift J. said: "Bearing in mind that a danger invites rescue, the court
should not be astute to accept criticism of the rescuer's conduct from the
wrongdoer who created the danger."

Until 1924, there was almost no English case law directly on the point. On the
other hand, in America there were numerous cases starting from 1871. The
American rule, as stated by Dr. Goodhart, is that "the doctrine of assumption of
risk does not apply where the plaintiff has, under an exigency caused by the
defendant's wrongful misconduct, consciously and deliberately faced a risk, even
of death, to rescue another from imminent danger of personal injury or death,
whether the person endangered is one to whom he owes a duty of protector or
is a mere stranger to whom he owes no such special duty." 3 In England this rule
was adopted by the Court of Appeal with some cautious qualifications in the case
of Haynes v. Harwood.4

In the above case the facts were that the defendant's servant left a twohorse
van unattended in a crowded street. The horses attached with the van ran away.
The plaintiff, a policeman, was on duty, not in the street, but in a police station.
He saw that a woman and many children were in grave danger of being run over
by these runaway horses. He rushed out of the police station and eventually
stopped the horses. In doing so he was seriously injured. Greer L. J. accepted
the American rule, as stated by Dr. Goodhart, and held the defendant liable. But
he also held that "the rescuer's act need not be instinctive in order to be
reasonable, for the man who deliberately encounters peril after reflection may
often be acting more reasonably than one who acts upon impulse." In other
words, the rescuer should act reasonably and not emotionally. For example,
Husband (H) and Wife (W) were on bad terms. On certain day both were passing
through a river bridge. H threw W in river. It was impossible for any one to
rescue W unless he knew swimming. R, a passer-by who did not know
 swimming, saw this and jumped in the river to rescue W. Although he could not
save W, but in doing so, he was himself drowned. However, God saved him (R),
but he was severely injured. Here if we apply the American rule, as stated by Dr.
Goodhart, the defendant will be held liable. But according to Greer L.J. in the
aforestated case, who

_________________________

1. (1921) 232 NY 180.

2. (1924) 1 KB 548.

3. 5 Cambridge LJ 196.

4. (1935) 1 KB 146.

adopted this American rule with some cautious
not be held liable as the plaintiff (R) has acted
Moreover, the plaintiff (R) must be in such a
endangered i.e., it should not be beyond his
prospect of success as in the present example.
qualifications, the defendant will
emotionally and not reasonably.
position that he can rescue the
capacity or without reasonable

Thus, the maxim has no application where the defendant, by his wrongful
misconduct, places a third person in imminent danger from which the plaintiff,
acting like a reasonable person, endeavours to rescue him and is injured in
consequence.

But the above principle will not apply to a case where it is not a rescue case or
where there is no need to take any risk. In such a case the person suffering
harm cannot recover. It was so held in the case of Cutler v. United Dairies
(London) Ltd.1

A horse belonging to the defendants and attached with a van was seen by the
plaintiff running past his house without the driver. It entered a field adjoining
the plaintiff's garden. The driver, who had followed it was trying to pacify it but
as it continued to be restive, the driver shouted for help. The plaintiff on hearing
this went and attempted to hold the horse, but it threw him to the ground
causing him serious injuries. It was held by the court that since there was no
need to take any risk and that no one was in danger, the plaintiff cannot
recover.

Again, the plaintiff may be barred from recovering damages, if his contributory
negligence is a decisive cause of injury. The case of Brandon v. Osborne, Garrett
and Co. Ltd.2 illustrates this point.

The facts were that husband (H) and his wife (W) were in a shop as customers.
 Owing to the negligence of the defendants who were repairing the shoproof,
some glass fell from a skylight and struck H. W, who was unharmed herself, but
who reasonably believed H to be in danger, instinctively cluched his arm and
tried to pull him from the spot, and, thus injured her foot. Swift J., held that
there was no contributory negligence on the part of the plaintiff as she had done
no more than any reasonable man would have done. "Bearing in mind that a
danger invites rescue, the court should not be astute to accept criticism of the
rescuer's conduct from the wrongdoer who created the danger."3

So far we have been considering the cases in which a third person due to the
wrongful act of the defendant was rescued by the plaintiff. But would it make
any difference if a person due `to his' own wrongful act is in imminent danger
and the plaintiff in trying to rescue him is injured. On principle, there ought not
to be any difference and, therefore, he ought to be held liable in the one case as
in the other. This was recognised in the case of Baker v. TE Hopkins & Sons
Ltd.,4 where a doctor was killed in an attempt to rescue two workmen from a well
which filled with the poisonous fumes of a petroldriven pump. His widow sued

___________________

1. (1933) 2 LB 297.

2. (1924) 1 KB 548.

3. Baker v. TE Hopkins & Sons Ltd., (1959) 1 WLR 984, per Willmer L.J.

4. Ibid., p. 976.

the men's employers and succeeded on the ground of their negligence. Barry J.,
observed as follows:

"Although no one owes a duty to anyone else to preserve his own safety,
yet if, by his own carelessness a man puts himself into a position of peril
of a kind that invites rescue, he would in law be liable for any injury
caused to someone whom he ought to have foreseen would attempt to
come to his aid."1

Another important question is whether the above doctrine of Haynes v. Harwood

applies to rescue of property also. If so, to what extent i.e., whether a man
would be justified in running risks of life or limb in order to save his own or other
people's property from evil consequence caused by the wrongful act of another
person. This question was considered by the Court of Appeal in Hyett v. G. W.
Rly.,2 where the plaintiff was injured in putting out the fire to another's property
caused by the defendant's negligence. The Court of Appeal held that, on the
facts, plaintiff's conduct was reasonable and that the defendants were liable. The
 court held that the doctrine of Haynes v. Harwood applies to rescue of property
as well as to rescue of the person. However, the court pointed out that in either
case it is necessary for the court to consider the relationship of the rescuer to
the property in peril, or to the person in peril, and also consider the degree of
danger.

From the above decision it appears that if it had been plaintiff's property,
presumably his claim would have been even stronger. But what will happen in a
case, for example where A kept a dangerous bomb in the typewriter of B and
while the bomb was just to explode, C, knowingly the capacity of bomb, ran to
save the typewriter and was severely injured? Dr. Goodhart suggests that the
only difference between the life and the property cases is that a rescuer would
not be justified in exposing himself to as great danger in saving property as he
would in saving human life."3 Winfield agrees with this principle, but he says that
this principle is not workable in particular cases and the rescuer might
reasonably encounter just as much danger in trying to preserve property as to
preserve life: e.g. where documents of great national importance, and of which
no copies exist, are in peril of being destroyed by a fire caused by the tortious
conduct of some person other than the rescuer. 4 It, therefore, appears that C's
intervention in saving the typewriter of B, was not justifiable, whereas the
intervention of a rescuer in saving the document of great national importance is
justifiable. Probably, for the same reasons, if the property of national
importance, like' Taj Mahal of Agra, is in peril of being destroyed by a bomb due
to wrongful conduct of another person, the intervention of the rescuer, even if
he stakes his life, is justifiable. But what will happen in those cases where an
individual's only property worth Rs. 5 lacs or 10 lacs is in peril of being
destroyed by the wrongful act of another person? It is possible that owner's
action may be declared justified

____________________

1. This was confirmed by the decision in Videan v. British Transport Commission, (1963) 2 QB 650.

2. (1948) 1 KB 345.

3. 5 Cambridge Law Journal, 198.

4. Winfield on Tort, 8th Edn., (1967), p. 754.

in saving his property even at the cost of his life because of antecedent
relationship with the property. But what about a stranger who stakes his life and
has no antecedent relationship or duty in respect of that endangered property?
The answer to this is found in the case of Russell v. MeCabe,1 where North J.,
held that "the fact that the act of intervention is made by a person with no
 antecedent relationship or duty in respect of the endangered property is not
necessarily fatal for intervener's action, but is a factor to be taken into account."
The need for intervention must necessarily be acute and the degree of risk in
intervening must be weighed against the nature and value of the property
sought to be protected. Clearly, a line requires to be drawn between justifiable
acts of intervention and the well meaning efforts of a stranger who, without
sufficient justification, intermeddles in some happening which comes to his
notice.

3. Act of God (Vis Major or Damnum Fatale)

Act of God in common parlance means any act of nature, for example, wind, frost,
flood, rainfall etc. But in law it means an unprecedented or extraordinary act of nature
which cannot reasonably be anticipated. According to Pollock, it is an "operation of
natural forces so unexpected that no human foresight of skill could reasonably be
expected to anticipate it."2 An Indian case of Mahindra Nath Mukherjee v. Mathuradas
Chaturbhuj3 is the illustration on this point.

The facts of the case were that during a storm in Calcutta a cinema advertising board
(i.e., banner) fell down from the defendant's premises and injured the plaintiff. The
defendant contended that the fall of the banner was caused by a storm of unusual
severity. It was, however, found that such storms of considerable severity usually come
in the town of Calcutta during Monsoon season. The Calcutta High Court held that such
a storm cannot be said to be so unexpected that no human foresight could reasonably
be expected to anticipate it and cannot be regarded as vis major or act of God."
Accordingly, the defendant was held liable for negligence as proper care was not taken
to secure the banner.

Since act of God is a good defence for nonliability, it is necessary that such an event
could not have been prevented by reasonable care on the part of the defendant. In
other words, before an act of God can be admitted as an excuse, the defendant must
himself have done all that he was bound to do. The case of Lallu v. Fazl Haq, 4 may be
cited here.

________________________

1. 1962 NZLR 392 (404).

2. Pollock Tort, p. 393.

3. AIR 1946 Cal 175. See also, Purshothama Rajaliar v. Kauneya, where it was held by the court, "an

extraordinary flood is such a flood as no reasonable person could anticipate." (AIR 1928 Mad 139).

4. AIR 1919 Oudh 121. (In another case of Ramalinga Nadar v. Naravana Reddiar, AIR 1971 Ker 197, it

was held that the criminal activities of the unruly mob which robbed the goods transported in the
 defendants lorry cannot be considered as an act of God and the defendant was liable for the loss of those

goods as a common carrier. The court observed. "Accidents may happen by reasons of the play of natural

forces or by intervention of human agency or by both. It may be that in either of these cases accidents may

be inevitable. But it is only those acts which can be traced to natural forces and which have nothing to do

with the intervention of human agency that could be said to be act of God.

In this case the facts were that the defendant allowed rain water to collect in the
materials and the debris of his fallen house which caused injury to an adjoining wall. It
was held by the court that the failure of the defendant to take due care that the rain
water did not collect in such a way as to damage the wall of their neighbour was
responsible for the damage suffered by the plaintiff. "The term act of God is limited
strictly to those classes of inevitable accidents which are occasioned by the elementary
forces of the nature, unconnected with the agency of man or other causes, and does not
include cases of damage which could have been prevented by such amount of foresight,
pains and care as can reasonably be expected from an adjoining owner." 1 Similarly, in
State of Mysore v. Ramchandra,2 the State constructed a reservoir for the supply of
drinking water for the villagers of Nipani. The overflow channel from the reservoir was
partially constructed and then was left incomplete. Plaintiff's land and crops were
damaged as the result of overflow of flood water from the reservoir during heavy rains.
The suit for damages filed by the plaintiff was resisted by the State on the ground of act
of God. The court rejected the defence and said: "Assuming an act of God such as a
flood wholly unprecedented, the damage in such a case results not from the act of God,
but from the act of man in that he failed to provide (as there was before) a channel
sufficient to meet the contingency of the act of God. But for the act of man there would
have been no damage from the act of God."3

But where a thing escapes from the defendant's land due to an unprecedented and
unanticipated act of nature and it is practically impossible for the defendant to prevent
it, the defence of act of God applies and the plaintiff cannot recover for the loss due to
that escape. A beautiful illustration on this point is the leading English case of Nichols v.
Marsland.4

Nichols was the surveyor of some county bridges for Chesire. Marsland was the owner
of an estate containing three lakes of ornamental water fed by a natural stream passing
through the estate. A very heavy unprecedented fall of rain (which never happened in
the memory of the witnesses) caused the lakes to swell to such an extent that it broke
down the artificial embankments of the lakes and the rush of escaping water carried
away four bridges of the county.

The plaintiff, Nichols, on behalf the county, brought an action for damages, alleging that
the defendant was negligent.

It was held by the court that the defendant was not negligent. Bramwell, J., of the court
of Exchequer, observed………"every one understands that a storm supernatural in one
sense may properly, like earthquake in this country, be called the act of God or vis
major. No doubt, it was not the act of God or vis major in the sense that it was
physically impossible to resist it but in the sense that it was practically impossible to do
so. Had the banks been twice as strong, or, if that would not do, ten times, and ten
times as high, and they were ten times as wide,

_________________________

1. AIR 1919 Oudh 125.

2. 73 Bom LR 723.

3. Ibid., p. 726. See also Greenock Corporation v. Glasgow and South Western Railway, 1917 AC 556.

4. (1876) 46 LJ Ex 174.

the mischief might not have happened, but these are not practical conditions. They are
such as, to enforce them, would prevent the reasonable use of property in the way most
beneficial to the community…I am of opinion the defendant is not liable." And Mellish
L.J., upholding the decision of the Court of Exchequer, held that "there was no
negligence in the construction or the maintenance of the reservoirs, but that the flood
was so great that it would not reasonably have been anticipated; although if it had been
anticipated, it might have been prevented, and it seems to us in substance a finding
that the escape of water was owing to the act of God."

The principle underlying Nichols v. Marsland is unquestioned, but the soundness of the
actual decision has been doubted,1 notably in Greenock Corporation v. Caledonian Rly.2

The Corporation of Greenock constructed a paddling pool for children in the bed of a
stream and thereby altered its course and obstructed its natural flow. Owing to
extraordinary rainfall the stream overflowed at the pond and flooded the property of the
Railway Company. It was also found that had there not been any obstruction in the
stream, water would have been safety carried away by the stream in its natural course.

The House of Lords held that it was not damnum fatale (i.e., act of God) and therefore
the Corporation was liable. Four of the Law Lords doubted upon the finding of the facts
by the jury in Nichols v. Marsland3 and two of them distinguished the case on the
ground that such a rainfall happened in the past in Scotland and therefore it was not
unprecedented.4 Finlay, L.C. said, "that if a person chose upon a stream to make a
great operation for collecting and damming up the water for whatever purpose, he is
bound, as the necessary condition of such an operation to accomplish his object in such
a way as to protect all persons lower down the stream from all danger. It is not
sufficient that he took all the pains which were thought at the time necessary and
sufficient.... He creates the danger and he must secure them against danger, so as to
make them as safe notwithstanding his dam as they were before. An extraordinary fall
of rain is a matter, which, in our climate, cannot be called a damnum fatale. The
appellants, in constructing the culvert ought to have foreseen the possibility of such an
occurrence and to have provided against it."

From the above decision of Nichols case, it is doubtful whether extraordinary rainfall is
an act of God,5 "but it always comes to a question whether such and such an act was
damnum fatale."6 Similar is the case of extraordinary high wind or extraordinary high
tide. Lightning, earthquakes, tornadoes and cloudbursts may generally be regarded as
an act of God, but there seems to be neither any English nor Indian decision in which
they have been involved. Besides this, from

_____________________________

1. See Goodhart, The Third Man, (1951) Current Legal Problem, p. 177.

2. 1917 AC 556.

3. Ibid., pp. 57374, 575, 58081.

4. Ibid., pp. 577, 57880.

5. See Attorney General v. Cory Bros, (1919) 35 TLR 570 (574) (doubted by Scrutten L.J.).

6. Greenock Corporation v. Caledonian Rly., op. cit., p. 577, per Lord Dunedin.

the above decisions one important point of difference is noticeable. In Nichols's case it
was held that act of God means an event which could not reasonably be
anticipated1 and in Greenock's case the view adopted by the House of Lords is that the
test of an act of God is whether human foresight and prudence can reasonably
recognise its possibility. In India, however, the rule of `reasonable anticipation' has
been vigorously followed by all the courts.2 Thus, an act of God may be defined as a
direct, violent, sudden, and irresistible act of nature as could not, by reasonable amount
of ability, have been anticipated or if anticipated, could not by reasonable amount of
human care and skill have been resisted.

If we mathematically try to explain act of God, the following formulas are deducible:

Any act of nature which is:

a. Unprecedented + unforeseen + irresistible = Act of God3

b. Unprecedented + foreseen + irresistible = Act of God4

c. Precedented + unforeseen + irresistible =Act of God5

d. Precedented + foreseen + irresistible = Act of God6

4. Inevitable Accident

An inevitable accident is that which is physically unavoidable. It does not apply to

anything which either party might have avoided. According to Pollock, an inevitable
accident is that accident which is "not avoidable by any such precautions as a
reasonable man, doing such an act then and there, could be expected to take."7 In
other words an inevitable accident is that which could not possibly be prevented by the
exercise of reasonable care, caution and skill. If in the performance of a lawful act, done
with all reasonable care, damage ensues through some unavoidable reason, each
damage affords no cause of action. The defendant must guard against reasonable
probabilities, but is not bound to guard against fantastic possibilities. An important
case8 on this point is that of Fardon v. Harcourt Rivington.9

_______________________

1. See also Makin Ltd. v. London and North Eastern Rly, 1943 LB 467 (CA).

2. See e.g. Purushothama Rajaliar v. Kannayya, op. cit.; Municipal Corp., Bombay v. V.R. Chandra, 6 Bom

LR 899; Murlidhar Kurmi v. Bhangi Kurmi, AIR 1919 Nag 94; Lallu v. Fazl Haq, AIR 1919 Oudh 121; P.K.K.
Nadar v. R.K. Mudalier, MANU/TN/0193/1962 : AIR 1962 Mad 44. It is submitted that the rule of

"physically possible" to prevent the escape as stated in Nichols' case coupled with the rule of "reasonably

recognise the possibility" of act of nature in the Greenock's case would be good enough if Government or

Corporation (Municipality, Board) is a defendant because of its financial capacity; Kallulal v.

Hemchand,MANU/MP/0023/1958 : AIR 1958 MP 48.

3. See Nichols v. Marsland; Manindra Nath v. Mathura Dass.

4. See Nichols v. Marsland.

5. See Greenock Corporation case.

6. See Greenock Corporation and Manindra Nath's cases.

7. Pollock's Law of Tort, 15th Edn., p. 97.

8. The others are: Stanlay v. Powell, (1891) 1 QB 86; Brown v. Kendall, (1850) 6 Cussing 292;

Nitroglycerine case, (1872) 15 Wallace 534; Wakesnan v. Robinson, (1823) 1 Ring 213; Slattery v. Haley,

37 HLR 163; Jones v. London County Council, (1932) 48 TLR 577.

9. (1932) 146 LT 391.

The defendant was travelling in a motor-car with his dog. He parked his motorcar in a
street and left his dog inside the shut car. The dog had no vicious propensities and was
always quiet and docile. As the plaintiff passed just by the side of the car, the dog which
had been barking and jumping about in the car, smashed a glass panel and a splinter
entered into one of the eyes of the plaintiff which had to be removed. The plaintiff sued
the defendant for damages.

Lord Dunedin, holding the defendant not liable, stated that "this is such an extremely
unlikely event that I do not think any reasonable man could be convicted of negligence,
if he did not take into account the possibility of such an occurrence and provide against
it either by not leaving the dog in the car or by tying it up so that it could not reach the
window. People must guard against reasonable probabilities, but they are not bound
against fantastic possibilities."1

Another case worth mentioning on this point is that of Brown v. Kendall.2

The facts were that the plaintiff's and defendant's dogs were fighting, the defendant was
beating them with a view to separate them, while the plaintiff was looking on. The
defendant retreated backwards from before the dogs, striking them as he retreated;
and as he approached the plaintiff, with his back towards him, in raising his stick over
his shoulders in order to strike the dogs, he accidentally hit the plaintiff, inflicting a
severe injury in his eye. It was held by the court that the act of the defendant in itself "
was lawful and proper act which he might do by proper and safe means"... That if "in
doing this act, using due care and all proper precautions necessary to the exigencies of
the case to avoid hurt to others in raising his stick for that purpose, he accidentally hit
the plaintiff in the eye and wounded him, this was the result of pure accident, or was
involuntary and unavoidable, and therefore the action would not lie. All that could be
required of the defendant was the exercise of due care adopted to the exigency of the
case."3

Similarly in India in Padmawati v. Dugganaika,4 the facts were that two strangers took
lift in a jeep. Shortly afterwards the bolt fixing the right front wheel of the jeep in the
axle gave way and the wheel flew away from the axle. The jeep was toppled and the
two strangers got serious injuries resulting in the death of one of them. The court held
that it was a case of sheer accident, as there was no evidence to show that the defect
was a patent one and could have been detected by periodical check up. The defendants
were, therefore, held not liable.

Shridhar Tiwari v. U.P. State Road Transport Corporation, 5 is another case where a
cyclist suddenly came in front of the bus. There was a rainfall and the road was wet. As
the driver of the bus applied brakes to save the cyclist the bus skidded on the road as a
result of which the rear portion of this bus hit the front portion of the plaintiff's bus
coming from the opposite direction. It was found that both

_____________________

1. (1932) 146 LT 396.

2. (1850) 6 Cussing 292.

 3. Ibid., p. 297.

4. (1975) 1 Karn LJ 93: 1975 ACJ 222.

5. 1987 ACJ 636.

the buses were being driven at a moderate speed and the accident had occurred despite
due care on the part of the drivers of both the buses. It was held by the court that the
accident had occurred due to inevitable accident and, therefore, the defendant
corporation was not liable.

The Supreme Court of India in the case of S. Vedantacharya v. Highways Department of

South Arcot1 held that an accident would amount to inevitable accident only when there
is no negligence on the part of the defendant. The facts of the case were that on 14th
November, 1960 when a bus was passing over a culvert, the culvert gave way and the
bus plunged into the stream as a result of which one person travelling in the bus died. A
presumption of negligence was raised against the defendant. The Highways
Department, pleaded inevitable accident on the ground that there were very heavy
rainfall during the last fifteen days, and there was more than 6 inches of rains a day
before the accident resulting in the breach of a nearby lake. This caused the rain water
entering the culvert with terrible velocity which ultimately made it to give way. The High
Court of Madras (on the basis of Engineers' Report that culvert was sound a day before
and the normal traffic had passed through it) held it as inevitable accident. But the
Supreme court reversed the decision of the High Court on the ground that not making
suitable provision for strengthening the culvert and bridges against heavy rain and
flood, which can be anticipated, amounts to negligence. The Highways Department
could not be absolved from liability by merely claiming that the accident was due to
heavy rain and flood. It had to be further proved that necessary preventive measures
had been taken anticipating such rain and flood and the accident occurred in spite of
that measures. The Highways Department failed to prove any such anticipatory action
and, therefore it was not a case of inevitable accident. Hence the Highways Department
was held liable.

Similarly, in Harnam Singh v. Aar Pee Auto Aid,2 the defendant used old and worn out
tyres in a vehicle and the same burst when the vehicle was going at an excessive
speed. Holding the defendant liable for negligence, the court said that sudden burst of
tyres in this case did not amount to inevitable accidents.3

From the above cases it is clear that `inevitable accident' is not a defence at all but only
a denial of liability, for, the defendant has not committed any tort. For instance, in an
action for bodily injury, the plaintiff has ordinarily to prove intent, or negligence of the
defendant, and if he fails to do so, his injury may be said to be an inevitable accident.
In cases of absolute liability, inevitable accident is no excuse unless it assumes the form
of an act of God.4 It therefore seems that the so called defence of `inevitable accident'
has not longer any useful purpose in the law of torts. Prof. Winfield 5 also supports this
view by stating that "there

_______________________

1. 1987 ACJ 783.

2. 1986 ACJ 396.

3. See also Oriental Fire & General Ins. Co. Ltd. v. Raj Rani, 1986 ACJ 713; Sabira Begum v. Raipur

Transport Co., ACJ 713; Jamila Begum v. Raipur Transport Co., 1986 ACJ 937; Holmes v. Mathar, 1857 LR

10 Ex. 261; Leame v. Bray, 3 East 593; Manzonli v. Douglas, (1880) 6 QBD 143; National Coal Board v.

Evans, (1951) 2 All ER 320.

4. See Rylands v. Fletcher, 1868 LR 3 (HL) 330.

5. Winfield on Tort, 8th Edn., p. 757.

seems, in fact, to be only one class of case in which the conception of inevitable
accident has any meaning, and even there it is in truth misleading. In cases to which
the maxim res ipsa loquitur applies the plaintiff can rely upon the mere happening of
the accident as evidence of negligence, and then it is sometimes said that the defendant
is liable unless he proves inevitable accident.1 But this, it is submitted is to over simplify
the position in cases of `res ipsa loquitur', and perhaps to falsify it.2 It therefore seems
that the conception of inevitable accident has no longer any useful function and it is
doubtful whether much advantage is gained by the continued use of the phrase.3

5. Mistake

Mistake means when one commits an error in understanding or when one understands
or perceives wrongly. Thus, a person may commit a mistake of law or of fact.
Accordingly, mistakes may be of two kinds: (a) Mistake of law and (b) Mistake of fact.

Mistake of law is generally no defence of civil liability, for, the rule of `ignorantia juris
non excusat' applies equally to the law of torts as to other branches of law. For
example, in Crabtree v. Dawson,4 the defendant who mistaken into the honest belief
that he has an authority to do an act committed a wrong under that mistaken belief,
was held liable on the ground that mistake of law, even on honest belief, is not
excusable.

Mistake of fact is also usually no ground of exemption from liability in tort.5 Even if the
mistake is based on reasonable and honest belief, yet the defendant will be held liable
in tort. Thus, for example, in Ransom v. Kitner,6 the defendant was held liable when he,
while hunting for wolves, shot dead the plaintiff's dog who had a striking resemblance
to a wolf. In Keep v. Quall-man,7 the defendant was held liable when he, while hunting
in a jungle, shotdead the plaintiff to whom he reasonably thought to be a deer. In
Basely v. Clarkson,8 it was held that to mow the grass of a neighbour under the honest
mistaken belief that it is the mower's own is a trespass. In Fowler v. Hollius, 9 it was
held that persons who deal with property in chattels or exercise acts of ownership over
them do so at their

_______________________

1. The Merchants Prince (1982), p. 179; Southport Corporation v. Esso Petroleum Co. Ltd., (1954) 2 QB

182 (200), per Denning L.J. (the Court of Appeal's decision was reversed by the House of Lords, 1956 AC

218.

2. See the observations of Devlin J., on The Merchant Prince in Southport Corporation v. Esso Petroleum

Co. Ltd., 1956 AC 229 (230-232).

3. Winfield on Tort, 8th Edn., p. 759. See also, Pape, "The Burden of Proof of Inevitable Accident in Actions

for Negligence" (1965) 38 ALJ 395; Clerk & Lindsell, Torts, 12th Edn., p. 31; S. Ramaswami Iyer, The Law

of Torts, 6th Edn., p. 532.

4. (1904) 119 Key 148: 83 SW 557.

5. It is not so in crime, it is generally treated as a defence under the Indian Penal Code.

6. (1888) 31 All App 241.

7. (1887) 68 Wis 451.

8. (1682) 3 Lev 37.

9. 1872 LR 7 QB 639.

peril and if damage results they are liable. In Consolidated Co. v. Curtis1 an auctioneer
was held liable when he innocently sold A's goods in the honest and reasonable belief
that they belonged, to B on whose instructions he sold them. In E. Hulton & Co. v.
Jones,2 the defendant was held liable for publishing a defamatory statement under the
honest belief that no such person as the plaintiff in fact existed.

But the general rule stated above is subject to certain exceptions provided the
defendant acts reasonably. Wherever a malice or a wrongful motive has to be proved by
the plaintiff, mistake will furnish a good defence. In other words, if in a case, malice is a
necessary ingredient of an act, mistake affords a complete defence, for there is no
wrongful act at all where a man commits it by a mistake. Thus, for example, a mistaken
prosecution of an innocent person is not in itself an actionable wrong on the ground that
such a rule would effectually impede the administration of Criminal Law. A prosecutor
incurs no liability unless he acted both maliciously and without reasonable cause. So the
mistaken arrest of an innocent person on suspicion of there being felony is not
actionable, if the felony has actually been committed, and there is a reasonable ground
for believing that the person arrested is guilty of it. In defamation too, mistake is
relevant in some instances of publication and privilege. A mistaken belief is a defence to
an action for deceit. Again vicarious liability of a master for the tort of his servant may
be neglected by a mistake of the servant which puts his wrong-doing outside the course
of his employment.3 A mistake induced by the plaintiff himself may be a good defence,
e.g. where as a practical joke, he leads a policeman to arrest him for a crime which he
has not committed.

6. Necessity

In certain circumstances intentional injury to a person, or property may be caused and

yet the defendant may not be liable if he pleads the defence of `necessity'. The defence
of `necessity' is based on the maxim `Salus populi supreme lex' which means the
welfare of the people is the supreme law. This maxim is founded on the implied assent
of every member of the society, that his own individual welfare will, in cases of
necessity, yield to that of the community and that his property, liberty and life shall,
under certain circumstances, be placed in jeopardy or even sacrificed for public good.

During the course of time certain principles have been evolved by the judges and the
jurists in order to apply the defence of `necessity' based on the said maxim.

The first and the foremost principle is that the defence of necessity can be successfully
pleaded if an injury to a person or his property is necessary to prevent a greater evil.

____________________________

1. (1892) 1 QB 495. See also winfield on Tort, 8th Edn., p. 56 where it has been stated that this rule has

been pushed to a harsh length in the tort of conversion.

2. 1910 AC 20.

3. Poland v. Parr, (1927) 1 KB 236; Gaya Prasad v. Bhagat Singh, ILR (1908) 30 All 525 (PC); Nagender

Nath Ray v. Basanta Das Bairagayas, (1929) 57 Cal 25.

This was recognised as far back as 1507 when Kingsmill. J., had held "that the violation
of another man's rights could be justified on the ground that the act was necessary to
the common weal, as in case of fire to take goods out of a house to save them, to pull
down a house to save other houses and in time of war to enter another man's land to
make a bulwark in defence of the King and the realm."1

The above statement of law delivered by Kingsmill in 1507 was approved in Maleverer
v. Spinke2 and has been followed in a large number of cases. Thus, destruction of a
building made ruinous by fire to prevent its collapse into the highway in the case of
Deway v. White3, pulling down a house on fire to prevent the spread of fire to the
property of others in Saltetre case,4 throwing goods overboard to lighten a ship in storm
in Monse's case5 and the use of force by the Captain or master of a ship to preserve
order and safety in the ship in Aldworth v. Stewart, 6 have been held justified under the
defence of necessity.

But in 1876 another development took place that the defence of necessity can be
justified only when it is found that the defendant's act was reasonably necessary in the
circumstances of the case. The relevant and important case on this point is that of Kirk
v. Gregory.7

In that case the facts were that one X died in a state of delirium tremens. His servants
were feasting and drinking in the house. The sister-inlaw of X, removed X's jewellery
from the room where he lay dead to another room for the sake of safety. Some
unknown person stole it. The court laid down the principle that "it is a defence that the
act was done for the preservation or protection of the property of the person, provided
there was reasonable necessity for the act." Accordingly, the sister-in-law was held
liable to X's executor for trespass to the jewellery because there was no proof that her
interference was reasonably necessary.

Since that case the law relating to the defence of `necessity' for the act of trespass has
been appreciably developed and defined. For the rule that the property in question must
be actually under attack has been substituted by the more generous rule that it must be
in real or imminent danger, and for the absolute criterion that the act of trespass must
be shown in the light of subsequent events—to have been necessary for the
preservation of the property has been substituted by the more relative standard of
reasonable necessity.8An important and leading case on this point is Cope v. Sharp.9

________________________

1. YB 21 Hen VU fo. 27, p. 5.

2. 1538 Dyer 36 R.

3. 1827 M&M 56.

4. (1605) 12 Rep 120.

5. (1609) 12 Rep 63.

6. (1866) 4 F&P 957.

7. (1876) 1 Ex D 55.

8. See also, Cresswell v. Sirl, (1948) 1 LB 241 (247).

9. (1912) 1 LB 496.

The facts briefly were that a fire broke out on A's land. While the servants of A were
trying to beat it out, the gamekeeper of C (who had shooting rights over A's land) set
fire to some strips of heather between the fire and some nesting pheasants of C. Shortly
afterwards, A's servants succeeded in extinguishing the fire. A sued the gamekeeper `C'
for trespass. It was held by the court that the gamekeeper is not liable, for, there was
real and imminent danger to the game at the moment at which he acted, and what he
did was reasonably necessary.

Besides the above rule that the defendant's act can be justified under the defence of
necessity when there is an imminent danger to the property and that what he does is
reasonably necessary, it is also to be added as has been held by the House of Lords,
that the occasion of necessity does not arise from the defendant's own negligence.1

So far we have been dealing with damage inflicted on property. There is no reported
decision that is of any real assistance on necessity as a defence for injuries to the
person. Prof Winfield says that "all that it is safe to hazard is that the principle of
reasonableness applies here also, that more latitude would be allowed in the protection
of the actor's person than his property, and still more where he acts for the public
safety and not for his own."2

7. Private Defence

It is human instinct to repel force by force, and this natural instinct has got judicial as
well as statutory recognition.3 Every person, therefore, has a right to defend his own
person, property or possession against an unlawful harm. But in defending, the force
used must be in proportion to the apparent urgency of the situation The question of
private defence may be considered under two headings:

1. Defence of person

2. Defence of property

7.1. Defence of person

It is lawful for every person to use reasonable force in selfdefence against an unlawful
force. But what is reasonable depends on the facts and circumstances of each case.
However, the underlying test is that the force used is not reasonable if it is either (a)
not in proportion to the apparent urgency of the situation or (b) there is no necessity for
the use of force. According to Salmond, in order that it may be deemed reasonable
within the meaning of this rule, it is not enough that the force was not more than
necessary for the purpose in hand. For even though not more than necessary it may be
unreasonably disproportionate to the nature if the evil sought to be avoided. 4 For
example, a man cannot justify a maximum for every assault. If A strikes B, B cannot
justify the drawing of his sword and cutting of his hand. Here the force used is not
justified, for, it is disproportionate
_____________________________

1. East Petroleum Ltd. v. Southport Corporation, 1956 AC 218 (242), per Lord Radcliffe.

2. Winfield on Tort, 8th Edn., p. 767. See also Gregson v. Gilbert, (1787) 3 Dougl 232 and Gaynor v. Allen,

1959 QB 403.

3. See, Sections 96106, IPC.

4. Salmond on Torts, 11th Edn., p. 375. See also Cook v. Beat, (1797) 1 Ld 176.

to the nature of evil sought to be avoided. One cannot lawfully defend himself against a
trivial assault by inflicting death or grievous bodily injury even though the assault
cannot be prevented in any other way. However, in case B is attacked with a deadly
weapon he can defend himself with a deadly weapon or any other weapon which may
protect his life. Here A is justified, for, he used the force in proportion to the evil sought
to be avoided. But where B is attacked by A with a stick and after attacking, A is going
back and then B attacks A with a stick, he (B) would not be justified to defend himself,
for, at that moment the attack was already over and, therefore, there was no necessity.

So far we have discussed the right of a person to defend himself. But can a person use
reasonable force in defending another against unlawful force? According to
Pollock,1Winfield2 and Clerk and Lindsell3, there is no doubt that the right extends to the
protection of one's spouse and family, and the weight of opinion includes defence of the
servant by the master, or vice versa. However it has been a controversial matter that
any one (i.e., even a stranger) can be defended against unlawful force, and according to
the view expressed in only one case, Walter v. Jones,4 this seems sound in principle
although much authority is not available on this point.5

7.2. Defence of property

Every person is entitled to protect his property whether moveable or immovable and
can use reasonable force in such protection. For instance, a flood is seen to be coming
upon land, the owner of such land may fence off and protect his land from it, and so
turn it away, without being responsible for the consequences, although his neighbour
may be injured by it.

But a person will be liable if he uses unreasonable force or takes unreasonable

measures in protecting his property. An illustration on this point is the case of Bird v.
Halbrook6where the defendant, having had flowers stolen from his garden, had placed a
spring gun in the garden for future protection. The plaintiff, a boy, in search of his
strayed away fowl and having no knowledge of the existence of the gun, got over the
garden wall, and coming into contact with the gun was injured. The court held the
defendant liable as he exceeded the right of private defence to his property. Similarly,
in Ramanuja Mudali v. M. Gangan,7 the defendant laid some live electric wire on his land
as a sort of fence. When the plaintiff passed through the defendant's land at around 10
p.m. to reach his own land, he sustained injuries from the live wire. The defendant was
held liable as he committed a wrongful act by exceeding the right of private defence to
his property.

________________________

1. Pollock Torts, 15th Edn., pp. 123, 135; See also Cockcroft v. Smith, (1706) 11 Mud Rep 48.

2. Winfield on Tort, 8th Edn., p. 760.

3. Clerk & Lindsell Torts, 11th Edn., pp. 216221.

4. (1634) 2 Polle Abr 526.

5. See Salmond, Torts, 11th Edn., p. 375.

6. (1828) 4 Bing 628.

7. MANU/TN/0192/1984 : AIR 1984 Mad 103; See also Cherubin Gregory v. State of

Bihar, MANU/SC/0080/1963 : AIR 1964 SC 205; Collins v. Renison, 1 Sayer 138.

Although the right of a person extends to the doing of anything which is reasonably
necessary to save his property, but he, in protecting his property, should not do
mischief so as to injure the property of his neighbour which would otherwise have been
protected. The case of Samiullha v. Mukund Lal1 illustrates this point.

The facts of the case were that a pond in a village L had an embankment on the north
of it; this embankment had existed for over 40 years. When the pond overflowed in the
rainy season, the surplus water flowed away, along a certain drain round the north and
west of that village. During an extraordinary flood, Mr. X the owner of another village on
the south side of the pond caused the embankment to be cut in order to protect his
village against the possibility of inundation. The cutting of the embankment caused the
land of village L to be flooded and the crops injured. The court, holding the defendant
liable, stated that where there is a natural outlet for a natural stream, no one has a
right, for the safety of his own property, to divert or to interfere with its flow, and if he
does so, he is ordinarily liable in damages to any one who is injured by his act. The
right of a person to protect his land from extraordinary flood extends to the doing of
anything which is reasonably necessary to save his property but he cannot actively
adopt such a course as may have the effect of diverting the mischief from his own land
to the land of another person which would otherwise have been protected.2

It may also be pointed out here that actual possession, whether with or without title, or
the right to possession of property is very necessary to justify force in expelling or
keeping out a trespasser. The leading case on this point is Holmes v. Bagge.3
The facts were that the plaintiff and the defendant were both members of the
committee of a cricket club. During a match the defendant was Captain and the plaintiff
was an spectator. The defendant asked the plaintiff to act as a substitute for one of the
player. He did so, but being annoyed at the tone of the defendant in commanding him
to put-off his coat, he refused either to remove the garment or to leave the playing part
of the game. He was then forcibly removed from the field on the direction of the
defendant. The plaintiff filed the suit against the defendant for damages for assault. The
defendant pleaded that he was in possession of the ground. It was held by the court
that the defendant's plea is not justified because the possession of the ground was in
the committee of the club. Accordingly, the defendant was held liable.4

Protection of property may also be against animals. The test for determining the
liability, as laid down in earlier cases is: "is the harm inflicted really necessary?"5 The
two cases are worth noting on this point:

_________________________

1. (1921) 19 ALJR 736.

2. See B.S. Sinha, An Introduction to Law of Torts through Indian cases, p. 23.

3. (1853) 1 E&B 782. See also, Polkinhorn v. Wright, (1845) 8 QB 197 and Roberts v. Taylor (1845) 1 CB

117; Dean. v. Hogg, (1834) 10 Bing 345.

4. It may be noted here that if the defendant had pleaded that he removed the plaintiff for disturbing

persons lawfully playing a lawful game, he would probably have been justified.

5. See Vera v. Cawdor, (1809) 11 East 568; Parnard v. Evans, (1925) 2 KB 794.

Morris v. Nuengt 1.—

The facts were that the defendant was passing-by the plaintiff's house. The plaintiff's
dog ran out and bit the defendant's gaiter. The defendant when turned round and raised
his gun, the dog ran away. When the dog was running away, he shot dead the dog. It
was held by the court that the defendant was not justified in shooting the dog. The
court stated that to justify shooting the dog, he must be actually attacking the party at
the time.

Turner v. Jagmohan Singh 2.—

The defendant was driving his carriage, driven by a pair of horses, on a road. A vicious
stallion repeatedly attacked the pair of horses and finally, came into the defendant's
compound in spite of attempts made to prevent him, and continued his attacks until the
defendant getting hold of a spear inflicted a somewhat severe wound on the left hind
quarter of the animal. After this the stallion made-off, but subsequently died due to the
injury. On a suit by the plaintiff, it was held by the court that the defendant's action was
justifiable, for, the dog was actually attacking the horses in spite of attempts made by
the defendant to prevent him.

Another important and leading case where the rule for determining the liability has been
elaborately stated is that of Cresswell v. Sirl3 where the defendant shot the plaintiffs
dog, which was trespassing and attacking sheep and pigs of the defendant. The court of
appeal formulated the following rules:

The burden of proof is on the defendant to justify the shooting. To justify the
shooting; firstly, the defendant must prove that the dog was either actually
attacking the animal, or that, if it were left at large, it would renew the attack.
Secondly, he should prove that either there was no practicable mode, except
shooting, of stopping the dog's present attack or preventing its renewal, or "that
the defendant, having regard to all the circumstances in which he found himself,
acted reasonably in shooting." To shoot a dog simply because it is playing with
another dog is unlawful; so, too, where it is merely chasing game, not intruding
into the possession of the person who owns the land, or who has sporting rides
over it. Indeed, the mere fleeting and harmless visits which, cats and dogs pay
to other people's houses are not trespasses at all in the sense that any damages
are obtainable from their owners, though the occupier of land can, of course,
expel them by reasonable means.4

8. Statutory Authority

The legislature has very wide powers. Any principle of common law may be reversed by
the Act of Parliament; and so any act or omission tortious under the common law may
be specifically made legal by a statute. It is in this respect, that statutory authority is a
defence. Certain principles, which have emerged during the course of judicial decisions,
are discussed below.

_________________________

1. (1836) 7 C&P 572.

2. (1905) 27 All 531.

3. (1948) 1 KB 241.

4. See also, Buckle v. Holmes, (1926) 2 KB 125; Gott v. Measures, (1948) 1 KB 234; Taylor v. Newman,

(1863) 4 B&S 89; Holmes v. Derby, (1948) 3 KB 311 (CA).

When a statute authorises the doing of an act, which would otherwise be a tort, the
party injured has no remedy except the one (if any) provided by the statute itself. An
Indian case worthmentioning on this point is of Bhogi Lal v. Municipality of Ahmedabad.1

The municipality of Ahmedabad demolished the wall of the plaintiff under their statutory
powers. The demolition of the wall also resulted in the falling of the roof dependent on
the wall. On an action by the plaintiff for the damage to the property, it was held by the
court that the defendant would not be liable, for no suit will lie on behalf of a man who
sustains a private injury by the execution of powers given by a statute, these powers
being exercised with judgment and caution.

But statutory powers are not charters of immunity for any injurious act done in the
exercise of them. The act done in pursuance of the statutory powers must be done
without negligence. If it is done negligently, an action lies. An illustration is the case of
Chandraram Nagaram Rice & Oil Mills Ltd., Gaya v. Municipal Commissioner of Purulia.2

The facts were that the plaintiff dispatched about 1000 canisters filled with mustard oil
from Gaya to Purulia in a van belonging to E.I. Railway. When these canisters reached
Purulia, the Municipal Committee of that place applied under section 287 of the Bihar
and Orissa Municipal Act, for a search warrant on the ground that the oil was bad. The
oil was seized by the defendant committee and was dispatched from the station in a
scavengers' truck loaded by mehtars.

The court held that the defendant in order to prevent beriberi within the municipality
acted very hastily in the matter; and that the action of the municipality if not actuated
by malice or as a result of conspiracy was certainly unreasonable and negligent. Justice
Varma observed that "if a person is exercising his rights under a statute he is not liable
unless it is proved that he acted unreasonably and negligently".

Absolute or Conditional Authority.—

It may also be pointed out here that the legislature confers such powers in one of two
ways. It may order a particular thing to be done regardless of whether it inflicts an
injury upon another person. This is known as absolute, mandatory or imperative
authority. In such a case the authority covers not only harm which must obviously
occur, but also that harm which is necessarily incidental to the exercise of the authority.
For example, it is just impossible to build a railway without interfering with private land.
So too, it is impossible to run trains on it without some noise and vibration, and there is
no more a remedy for the incidental harm, provided the work has been carried out
without negligence, than there is for the more obvious harm. 3 In the case of Dunne v.
N.W. Gas Board,4 Sellers L.J. also observed, "where there is a mandatory obligation ...
there would be, in our opinion, no liability if what had been done

________________________

1. 3 Bom LR 415.

2. AIR 1944 Pat 408.

 3. Quebec Ry. v. Vandry, 1920 AC 662.

4. (1964) 2 QB 806.

was that which was expressly required by statute to be done or was reasonably
incidental to that requirement and was done without negligence." 1 Similarly, it has been
held in India that if the legislature has authorised certain act and the authority given is
imperative, no action would lie against the person who has the statutory authority to do
the act, provided it is done without negligence. This statutory authority not only extends
to the act itself, but to all its necessary consequences. "When the Legislature has
authorised an act, it must be deemed also to have authorised by necessary implication
all inevitable results of that act."2

The other way is that the Legislature may merely permit a particular thing to be done.
This is known as permissive or conditional authority. Here too, there is no liability
except for negligence. The case of Faiyaz Hussain v. Municipal Board of
Amroha,3 illustrates this point, where Shia Mohammedans contended that they had a
right to take out Tazias which were upto 27 feet in height in the public streets of
Amroha by certain fixed routes and that defendant must raise the electric wire to such a
height as not to cause interference in the exercise of that right.

It was held by the court that when according to the true construction of a statute the
legislature has authorised certain act and the authority given is merely permissive and
not imperative, the legislature must be held to have intended that the execution of work
permitted must be done in such a way as not to prejudice the common law rights of
others. Justice Iqbal Ahmad observed that "there is nothing on the record of the present
case from which it could be argued that the fixing of the wires at the height of 27 feet
was an impossibility or that some other arrangements could not have been made so
that the inherent right of the plaintiff was not to be interfered with..." Accordingly the
appeal was allowed.

Another important case of Surpatee Bara Bazar Co. Ltd. v. Municipal Corporation of
Rangoon4 also illustrates this point, where the plaintiff filed a suit against the Municipal
Corporation for an injunction to restrain the defendant Corporation from erecting or
causing to be erected a laterine in Dalhousie street on the ground that the site chosen
by the corporation was not proper and convenient and that it would be a source of
nuisance.

It was held by the court that if the act can be performed without creating a nuisance
and without causing injury or damage, then the local body performing the act would be
liable if the act is performed in such a manner as to create nuisance or cause damage.
It is a matter of construction of the statute whether the legislature intended merely to
confer permissive right on the local body, or, to enjoying the performance of an
obligatory duty. Where in the performance of an act, an option is given to the
Municipality e.g., in the selection of a site, in

______________________________

1. (1964) 2 QB 835.

2. See Nirmal Chandra Sanyal v. Municipal Commissioners of Patna, MANU/WB/0264/1936 : AIR

1936 Cal 707; Bhogi Lal v. Ahmedabad Municipality, 3 Bom LR 415; Hammer Smith Rail Co. v. Brand, 1869

LRHL 171; Vaughan v. Taff Valde Rail Co., 5 H&N 679.

3. MANU/UP/0108/1938 : AIR 1939 All 280.

4. AIR 1928 Rang 87; See also Municipal Board, Mathura v. Gopinath, MANU/UP/0061/1962 : AIR

1962 All 211.

deciding of the necessity for the performance of the act at a particular time, then the
choice of the local body of either place or time cannot be questioned unless the choice
has not been bona fide.

The two important and leading cases on this point may also be cited. In Metropolitan
Asylums District v. Hill1 the facts were that the defendants were authorised by the
Metropolitan Poor Laws Act, 1867, to establish and run asylums for the sick poor
chargeable in the metropolis. Accordingly, they founded and run a smallpox hospital at
Hampstead and this constituted a nuisance to the plaintiff. The plaintiff sued on the
basis of nuisance and the defendants pleaded statutory powers. The House of Lords
held that the Act did not (either expressly or impliedly) authorise the commission of any
nuisance or tort, the terms of the statute were permissive and not imperative; it was
not a necessary consequence of the permissive authority that the defendants should
commit a nuisance; they were intended to exercise that authority without interfering
with the rights of the private individuals. The plaintiff, therefore, succeeded in his claim.

With the above case, another English case of AttorneyGeneral v. Nottingham

Corporation,2 may be compared. There the corporation proposed to use a big building
as a smallpox hospital, and the court declined to issue an injunction to prevent them
from doing so, for, they did not regard the theory of the aerial dissemination of
smallpox as unequivocally established.

The distinction between the cases seems to be this. The argument of the managers in
Hill's case was, "Because we have authority to erect a smallpox hospital, we can erect it
anywhere." The argument of the plaintiff in Attorney-General v. Nottingham Corporation
was, in effect, "You cannot erect a smallpox hospital anywhere in a populous
neighbourhood." In fact, both arguments were over statements, for the first would have
twisted the statute into a licence to commit any nuisance by means of the hospital,
while the second assumed the hospital to be a nuisance without any proof that it was.
In fact, with smallpox hospitals, as with every other kind of potential nuisance, it is a
question of time, place and circumstance whether it is an actual nuisance or not.3

9. Act of State

In all civilised countries, the Sovereign reserves to itself certain powers. They are those
powers which fall outside the province of municipal law. These powers when exercised
by a sovereign are termed as acts of State. The phrase, act of State, in the present
context therefore refers to an injury done (outside the ambit of municipal law) by or
under the authority of government to a foreign state or a subject of a foreign state who
is not residing in India at the time. The peculiarity of act of State is that the sovereign
cannot be sued in its own courts (i.e., Municipal courts) for the injury which he has
inflicted to a foreign state or its subject. For example the government cannot be sued in
its own courts for

_____________________________

1. (1881) 6 App Cas 193.

2. (1904) 1 Ch 673; See also Board v. Kant, 1941 AC 74.

3. Winfield on Tort, 8th Edn., p. 770.

annexation or hostile seizure of a foreign territory. In Tanjore case, 1 Lord Kingsdown

observed, "The transactions of independent States between each other are governed by
other laws than those which municipal courts administer. Such courts have neither the
means of doing what is right nor the power of enforcing any decisions they make." Thus
the municipal courts are not empowered to entertain an action in respect of injury
arising from government's declaration of war, peace or blockade, treaties of peace or
commerce or seizure or cessation of foreign territory. 2 Similarly, the government has
the authority to deport an alien from its borders.3 However, if an injury is inflicted on an
alien who is at the time a resident in India and owes temporary allegiance to the Union
of India, then he can sue for the injury in an Indian Court.4

But it must be noted that the acts of the government which fall within the ambit of
Municipal Law cannot be termed as act of State. In Jehangir v. Secretary of State 5 one
of the contentions raised by the government was that the power to dismiss or appoint a
government servant was an act of State and, therefore, the court had no jurisdiction.
Negativing the contention of the government, Justice Batty defined the phrase `act of
State' as follows: An `act of State' is a term which is not applicable to an action of the
sovereign towards its own subjects in its own territory in time of peace. The expression
is usually applied to an action of the sovereign towards foreign subjects, whether it be
in time of peace. It would, however, be a misnomer to call the administrative acts of a
sovereign against its own subjects in time of peace as acts of State and to claim
immunity in respect of them, although they may amount to a contract in the ordinary
sense between the sovereign and his subjects.

Similarly, in P.V. Rao v. Khushal Das S. Advani,6 Chief Justice Chagla defined `act of
State'. According to him an act of state is different fundamentally from an act of a
sovereign authority. An act of State operates extraterritorially. Its legal title is not any
municipal law but the over-riding sovereignty of the State. It does not deal with the
subjects of the State but deals with aliens or foreigners, who cannot seek the protection
of the municipal law. It is difficult to conceive of an act of State as between a sovereign
and his subjects. If Government justifies its act under a colour of title and that title
arises from the municipal law, that act can never be an act of State. Its legality and
validity must be tested by municipal law and in municipal courts.

It should be noted that an act of State operates extraterritorially. It does not operate
against its own subjects. It operates against aliens and foreign subjects who have no
protection of municipal law. An interesting question arises:

___________________________

1. Secretary of State for India v. Kamatche Boye Saheba, (1859) 13 Moo PC 22; See also Salaman v.

Secretary of State for India, (1906) 1 KB 613 and Secretary of State v. S.P. Khan, 1941 AC 356.

2. R.V. Bottrill, 1947 KB 41; Esposito v. Bowden, (1857) 7 B&B 781; Cook v. Sprigg, 1899 AC 572.

Secretary of State v. Rustam, 1941 AC 356.

3. Mus Grove v. C.T. Toy, 1891 AC 272.

4. See, Part III of the Constitution.

5. (1904) 6 LR 131 (DB).

6. MANU/MH/0002/1949 : AIR 1949 Bom 277.

Whether a person can be treated as a subject of that State which is having de facto
control of another state in which he resides? More precisely, can the action against that
person by the State, having de facto control, be treated as act of State. This Question
was answered by the Supreme Court in the case of State of Saurashtra v. Mohammad
Abudlla.1The facts were that the Nawab of erstwhile State of Junagarh had made grants
of certain properties which were being held by the respondents. After the passing of the
Independence Act, 1947 the Nawab of Junagarh became a sovereign but unlike other
rulers in India, did not accede to India. The Nawab then left for Pakistan and there was
a chaos in the State. At the request of Nawab's Council, the administration of Junagarh
was taken over by the Government of India on 9th November, 1947, and on 14th
November, 1947 the government appointed an administrator to administer the state. In
a referendum held in 1948, the people there voted in favour of the accession of the
State to India. On 21st January, 1949, Junagarh State was merged into the United
States of Saurashtra.

Thus the de facto control of Junagarh State was with the Government of India from 9-
11-1947 to 20-1-1949, and the de jure control was with the Government of India from
21-1-1949 onward. The administrator appointed by the Government of India on 14th
November, 1947 cancelled the grants on 18th November, 1947 made by the Nawab to
the respondents. The question before the court was: whether the action of the
administrator was act of State? It was held by the Supreme Court that the orders of the
administrator arose out of and during an act of State over which the municipal courts
had no jurisdiction. Justice Das said that even though de facto control of Junagarh State
was taken over by the Government of India on 9th November, 1947 but there was no
de jure change of sovereignty until January 20, 1949. The respondents were aliens
against whom the orders of the administrator were an act of State.2

But where the action has been taken against the subject after taking over de jure
control of the State, it will not amount to act of State. Thus, in Hardial Singh v. State of
Pepsu,3the facts were that the ruler of Nabha made a grant of property known as
"Malwa House" at Nabha to the appellant, Hardial Nabha Singh. The State subsequently
came to be merged in Patiala and east Punjab States Union (PEPSU) on 2081948, and
the State of PEPSU repudiated the abovestated grant in 1952. It was held by the Punjab
High Court that when different States were merged on 20-8-1948 by a covenant
amongst their rulers and the new State of PEPSU was created by such merger, all the
citizens of covenanting States had become the citizens of PEPSU on that date. The act
of repudiation in 1952 cannot be termed as `act of State' because the act of state does
not operate against its own citizens.

_________________________

1. MANU/SC/0091/1961 : AIR 1962 SC 445; See also State of Saurashtra v. Memon Haji

Ismail, MANU/SC/0178/1959 : AIR 1959 SC 1383.

2. Ibid., (453); See also Virender Singh v. State of Uttar Pradesh, MANU/SC/0025/1954 : AIR 1954

SC 447; Dalmia Dadri Cement Co. v. C.I.T., MANU/SC/0084/1958 : AIR 1958 SC 816; J. Aggarwala

v. State of Orissa, MANU/SC/0108/1961 : AIR 1961 SC 1361; Jarwar Singh Ji v. Secretary of State,

AIR 1924 PC 216; State of Gujarat v. Fiddaali, AIR 1964 SC 1043.

3. AIR 1960 Punj 644.

10. Judicial Acts

If a judge or a judicial officer acts within his jurisdiction, "no action lies for acts done or
words spoken by a judge in the exercise of his judicial office, although his motive is
malicious and the acts or words are not done or spoken in the honest exercise of his
office."1 This rule of judicial immunity from liability is based on the principle of public
benefit that judges or judicial officers should be at liberty to exercise their function with
independence and without fear of consequences. It is better to take the chance of
judicial incompetence, irritability, or irrelevance, than to run the risk of getting a Bench
wrapped by apprehension of the consequences of judgments which ought to be given
without fear or favour.2 Moreover there are other modes of remedies for judicial
misconduct even if there is no civil remedy. For example, the remedy for judicial error is
some form of appeal to higher court; and the remedy for judicial corruption is criminal
prosecution or removal of the judge.

The above rule of English Law has been extended to judicial officers in India by the
Judicial Officer's Protection Act, 1850. Section 1 of the Act provides:

"No Judge, Magistrates, Justice of Peace, Collector or other person acting

judicially shall be liable to be sued in any civil court for any act done or ordered
to be done by him in the discharge of his judicial duty, whether or not within the
limits of his jurisdiction, provided that he at the time, in good faith, believed
himself to have jurisdiction to do or order the act complained of........."

It would be seen that the statute is clearly intended to grant protection to judicial
officers against suits in respect of acts done or ordered to be done by them in discharge
of their duties as such officers. The statute, it must be noticed, protects a judicial officer
only when he is acting in his judicial capacity and not in any other capacity. But within
the limits of its operation it grants large protection to judges and magistrates acting in
the discharge of their judicial duties. If the act done or ordered to be done in the
discharge of judicial duties is within his jurisdiction, the protection is absolute and no
enquiry will be entertained whether the act done or ordered was erroneously, irregularly
or even illegally or was done or ordered without believing in good faith, that he has
jurisdiction to do or order the act complained of. If the act done or ordered is not within
the limits of his jurisdiction, the judicial officer acting in the discharge of his judicial
duties is still protected, if at the time of doing or ordering the act complained of he in
good faith believed himself to have jurisdiction to do or order the act. 3 The expression
`jurisdiction' does not mean the power to do or order the act impugned but generally
the authority of the judicial officer to act in the matter.4

It may be noted that the officer must be acting judicially to claim the protection under
this Act and the mere fact of his being a Judge, Magistrate, or

_________________________

1. Anderson v. Gorrie, (1859) 1 QB 668 (671).

2. Winfield on Tort, 8th Edn., p. 715.

3. Raghunanda Rao v. Nathamuni, 6 MHC 423.

 4. Tayen v. Ram Lal, ILR 12 All 113.

other judicial officer, does not protect him as he might be acting in his executive
capacity.1

In England, there is a similar rule of judicial immunity from civil liability, but a
distinction is made between a superior court (i.e., the Court of Appeal ) and an inferior
court (i.e., the trial, or county court). No action lies against a judge of a superior court
on the ground that he acted without jurisdiction, but an action lies against a judge of an
inferior court. However, no action will lie against any judge merely on the ground of
dishonesty or malice if he acted within his jurisdiction.2

11. Officers of the Court

The above protection has also been accorded to other officers of the court by the
Judicial Officer's Protection Act, 1850. Section 1 of the said Act further provides that no
officer of any court or other person bound to execute the lawful warrant or order of any
such Judge, Magistrate, Justice of the Peace, Collector, or other person acting judicially
shall be liable to be sued in any civil court, for the execution of any warrant or order
which he could be bound to execute, if within the jurisdiction of the person issuing the
same.

A similar rule prevails in England. A bailiff, Police Officer, Sheriff, Gaoler carrying out a
warrant or order for arrest, attachment etc. would be protected from civil action.3 But
this is subject to the condition that the warrant or order is lawful on the face of it and
executed in conformity with law. There is no immunity from liability if it is manifestly
illegal or irregular,4 e.g., a warrant which is not sealed or signed by the Magistrate or
Judge, or if it is not executed properly e.g., against the wrong man5 or property.6 It
must he pointed out here that the above immunity from liability applies to the execution
only of judicial order or warrants, and not of those issued by executive or administrative
officers.

____________________________

1. Anwar Husain v. Ajoy Kumar Mukherjee, MANU/SC/0374/1965 : AIR 1965 SC 1651. See this case

in detail in the Chapter on false imprisonment.

2. See Winfield, op. cit., p. 7.5.

3. Morris v. Winter, (1930) 1 KB 243.

4. Horsfield v. Brown, (1932) 1 KB 355.

5. Davies v. Jenkins, (1843) II M&W 745.

6. Crozie v. Cundey, (1827) 6 B&C 233.

 
 

 
  

© Universal law Publishing Co.

   

CHAPTER 6

REMOTENESS OF DAMAGE

SYNOPSIS

1. Test of remoteness of damage

2. Degree or extent of damage

3. Ways or manners of causing the damage

4. Kinds of damage or injury

5. Concluding remarks

Natural justice demands that a person should be held responsible for all the
consequences of his negligent act. But this kind of justice would, in ultimate analysis,
unreasonably hamper human activity. Accordingly, rules of law arise so that a person
should not be responsible ad infinitum, for all the consequences of his wrongful conduct.
Bacon in 1630 rendered a maxim "In jure non remota causa sed proxima spectatur" for
limiting the liability of the negligent actor. By this maxim he meant, "it were infinite for
law to consider the causes of causes, and their impulsions one of another: therefore it
contenteth itself with the immediate cause, and judgeth' of acts by that without looking
to any further degree."1 Although this maxim has often been cited, it does not show an
`immediate' cause. We, however, find that common law has probed the matter, more
deeply than the maxim does. But common law cannot be regarded as an infallible rule
of thumb, for, there is no scientific analysis of causation. On the other hand, neither the
test of remoteness of causation put forward by AngloAmerican courts would satisfy any
scientist or metaphysicist nor the test suggested by a scientist or metaphysicist would
be of any practical use to a lawyer. For, as Lord Summer rightly said, "The object of a
civil enquiry into cause and consequences is to throw liability on some responsible
person and to give reparation for damage done....The trial of an action for damage is
not a scientific inquest into a mixed sequence of phenomena, or an historical
investigation of the chapters of events.... It is a practical enquiry."2 Causation is,
therefore, to be understood as the man in the street understands it and not as either
the scientist or the metaphysicist would take it. `Common sense standard' should
therefore be taken as a general rule for determining the range of liability of the
negligent actor.

Remoteness of damage can be understood in its proper perspective if a little description

is given of negligence, for negligence is the initial step and

______________________

1. Maxims of the Law, 1630 Reg 1; See also Mclaughlin, (192526) 30 Harv LR 156.

2. Weld-Blundell v. Stephens, 1920 AC 986.

remoteness the subsequent in determining the liability of a negligent actor. Negligence

as a tort, according to Winfield, is the breach of a legal duty to take care which results
in damage, undesired by the defendant, to plaintiff. 1 Negligence thus requires three
preliminary questions to be answered before `remoteness of damage' comes into play.
The first question in every case is whether there was a duty of care owed to the
plaintiff, and the test of duty depends on what you should foresee. 2 There is no duty of
care owed to a person when you could not reasonably foresee that he might be injured
by your conduct.3 The second question is whether you committed a breach of that duty;
and the test of breach of duty depends on whether you were acting like a reasonable
and prudent person.2 There is no breach of duty if you acted like a reasonable and
prudent person in the circumstances. The third question is whether the negligent breach
of duty was a cause of the injury in the proper sense of that term; and causation, as
well as duty, generally depends on what you should foresee. The chain of causation is
broken when there is an intervening action which you could not reasonably be expected
to foresee.4 It is even broken when there is an intervening omission which you could not
reasonably expect.5 It is only when those three preliminary questions duty, breach of
duty and causation, are answered in favour of the plaintiff that the fourth question,
remoteness of damage comes into play. It, is here that remoteness of damage is
concerned with the question as to how many items of plaintiff's loss, a negligent actor
should not be held responsible. To put it in another way, remoteness of damage is
concerned with the question whether damages may be recovered for particular items of
plaintiff's loss. If a particular item is remote, the defendant is not held responsible for
that item of plaintiffs loss. What is `remote' is to be determined on the basis of the
principles laid down by the courts in various decisions. This inevitably requires us to
probe deeply into English decisions since the law of torts in India, Uganda, rather in
East Africa, and in many other countries is based on English common law of torts6 and
remoteness principle have always puzzled the courts and the commentators.

____________________________

1. Winfield on Tort, 15th Edn., p. 90.

2. Donoghue v. Stevenson, 1932 AC 562.

3. Woods v. Duncan, 1946 AC 401 (437) per Lord Russell and Lord Porter.

4. Woods v. Duncan, 1946 AC 421 (431, 432) Per Lord Simon, Lord Macmillan and Lord Simonds.

5. For instance, in cases based on Donoghue v. Stevenson, (cit. ibid.), a manufacturer is not liable if he

might reasonably contemplate that an intermediate examination would probably be made.

6. See, e.g., Art. 11, East African Order in Council, 897; Sec. 15(2), Uganda Order in Council, 190; Sec.

8(1) Judicature Act, Laws of Uganda No. 11 of 1967. The Law of Tort in East Africa today comprises law of

both alien and of customary origin. Custom is formally guaranteed in the Statute books. Although

customary law has retained its power in the fields of family law, succession and to a limited extent, in

criminal law, but it has not exerted any real influence on the development of law of tort. Thus, the law of

tort in Uganda and in all the East African Countries is based on English common law of torts in so far as it is

suitable to local circumstances and not contrary to any written law. The same situation exists in India, See

S.P. Singh, the Meaning and Definition of Tort (1972) 11 Andhra Weekly Reporter, Vol. XXXIV, Part 22, p.

44. However, in East Africa, for reasons which are social, economic and political it is clear that customary

law of tort will remain limited to such areas as elopement, adultery, seduction and the assessment of

damages for personal injuries and wrongful death. See E Veitch, East African Cases on the Law of Tort. No.

1, 1972.

Until 1850 in England the principles of remoteness of damage laid down by the courts
were not harmonious and the courts either took refuge in scraps of scholastic logic
about causa causans and causa causta.1 or indulged in the mistiest generalities, such as,
"he that does the first wrong shall answer for consequential damages." 2 or "the
damages must be the legal and natural consequences"3 of the wrongful act.

1. Test of remoteness of damage

Since 1850, however, two competing views of the test of remoteness of damage have
appeared in the law. According to first, which was propounded by Pollock, consequences
are too remote if a reasonable man would not have foreseen them.4 According to the
second, if a reasonable man would have foreseen any damage to the plaintiff as likely to
result from his act, then he is liable for all the direct consequences of it suffered by the
plaintiff, whether a reasonable man would have foreseen them or not.5
In 1921, in an important case of Polemis, 6 the, court of Appeal apparently settled
English law in favour of the second rule. The facts briefly were that a ship was hired
under a charter which exempted both the ship-owner and the charterers from liability
for fire. Among other cargo the charterers loaded a quantity of petrol in tins which
leaked during the voyage and thus there was a good deal of vapour in the hold. At
Cansablanca port, one of the charterers' servant, while unloading the cargo, carelessly
dropped a plank into the hold which caused fire and the ship was destroyed. The court
found that it was careless to drop the plank, that some damage to the ship was
foreseeable, but that the causing of the fire was not. Holding the charterers liable, the
Court of Appeal stated that the defendants were liable for all direct consequences of the
negligence, even though they could got have been reasonably anticipated. None of the
judges of the court, except Scrutton L.J., defined `direct' consequences: "To determine
whether an act is negligent, it is relevant to determine whether any reasonable person
would foresee that the act would cause damage; if he would not, the act is not
negligent. But if the act would or might probably cause damage, the fact that the
damage in fact caused is not the exact kind of damage one would expect is immaterial,
so long as the damage is in fact directly traceable to the negligent act, and not due to
the operation of independent causes having no connection with the negligent act,
except that they could not avoid its results. Once the act is negligent, the fact that its
exact operation was not foreseen is immaterial. This is the distinction laid down by the
majority of the

____________________

1. Earl of Shresbury's case, (1610) 9 Rep 46.

2. Vicars v. Wilcocks, (1806) 8 East 1.

3. Ward v. Weeks, (1830) 7 Ring 211.

4. Rigby v. Hewitt, (1850) 5 Ex 240; Green Land v. Chaplin, (1850) 5 Ex 243.

5. Smith v. L&SW Rly., (1870) 3 KB 577. Weir, case book on Tort, 3rd Edn., p. 163: See also WeldBlundell

v. Stephens, op. cit.

6. Polemis and Furness (in re:), Withy & Co. Ltd., 1921 All ER 40.

Exchequer Chamber in Smith v. L.& S.W. Rly., and approved by Lord Summer in
Weld Blundell v. Stephens."1

Thus, in re Polemis the judges followed the principles laid down in Smith v. L.&S.W.
Rly., and stated that once one has been found to be negligent in the sense that injury to
some one is foreseeable, then any person directly injured by it can recover even though
it is unforeseeable that he might suffer damage in any way. This, however, would
conflict with the basic principle that before liability in negligence can exist there must be
a breach of a duty owed to the plaintiff. According to Winfield, the question of the
defendant's initial liability i.e., whether he committed a tort against the plaintiff, must
be distinguished from the secondary question of remoteness of damage, namely, for
what consequences of the defendant's conduct is the plaintiff entitled to recover
compensation. The case is no authority for liability to the unforeseeable plaintiff.2

Re Polemis never attracted the detailed consideration of the House of Lords. In

Liesboach Dredger v. S.S. Edison3 the House of Lords, without having detailed
consideration, distinguished and restricted its operation. In Liesboch case, the
appellant, whose vessel had been fouled by the respondents, claimed damages under
various heads. The respondents admitted their fault for sinking the plaintiff's dredger,
but the question was how much they had to pay. It was argued on behalf of the
appellants invoking the rules of Re Polemis, that the appellants should be responsible
for all the direct consequences, whether reasonably foreseeable or not. The House of
Lords held that they could recover as damages the market price of a dredger and
compensation for loss in carrying out the contract between the date of the sinking and
date on which the substituted dredger could reasonably have been available for work,
but the claim for extra expenses due to poverty was rejected. Lord Wright (with whose
speech the rest of the House agreed), without overruling, distinguished Re Polemis on
the ground that in that case the injuries suffered were the "immediate physical
consequences" of the negligent act, and added, "nor is the appellant's financial disability
to be compared with that physical delicacy or weakness which may aggravate the
damage in the case of personal injuries, or with the possibility that the injured man in
such a case may be either a poor labourer or a highly paid professional man. The former
class of circumstances goes to the extent of actual physical damage and the latter goes
to interference with profitearning capacity; whereas the appellant's want of means was,
as already stated, extrinsic."3

Certain points emerge from the principles laid down in Liesbosch case. Firstly, it created
a distinction between physical disability and plaintiff's impecuniosity

___________________________________

1. 1921 All ER 163. In the present case, the court held: it was negligent in discharging cargo to knock down

the plans of the temporary staging, for they might easily cause some damage either to workmen, or cargo,

or the ship. The fact that they did directly produce an unexpected result, a spark in an atmosphere of petrol

vapour which caused a fire, does not relieve the person who was negligent for the damage which his

negligence not directly caused. The same principles have been followed in East Africa, see for example,

Ladha v. Durheim, (1935) 2 EACA 9; Gulam v. Yusuf, (1946) 13 EACA 25; K.C.M. Thysen v. W.B. Ltd.,

1962 EA 288; O.T. Co. (R.S.) Ltd., v. A.P. Agency, 1962 UHC: 1962 EA 191.

2. Winfield, op. cit., p. 91.

 3. 1933 AC 448.

and, secondly, it restricted the Re polemis rule to only "immediate physical

consequences." It is respectfully submitted that both the points are not logically
satisfying. It is not possible to give any logical reason why the law regards plaintiff's
"financial disability" (i.e., impecuniosity) as extrinsic but takes into account his "physical
disability". To put it in other words, if plaintiff has suffered more than expected injuries
because of "physical disability" then the defendant would also be liable for unexpected
injuries; whereas if the plaintiff suffered more than expected loss because of financial
disability, then the defendant would not be liable for unexpected losses. It is illogical to
hold in one way in a case and the other way in a similar case. It has been said that the
rule is one of policy,1 but it is submitted that it can be challenged in the House of Lords
since there are contract cases which take account of impecuniosity2 and there is
authority that even in cases of tort plaintiff's impecuniosity may excuse his failure to
mitigate his loss.3 In the absence of any logical reasoning, it is therefore submitted that
both should be treated equally at par. As to the second point, the Law Lords preserved
the rule of Re Polemis that if some damage is foreseeable, then he will be liable for all
the direct consequences even if unforeseeable provided they are "immediate physical
consequences."4 It thus appears that the Law Lords created a distinction between
"immediate physical consequences" and "immediate other consequences". The former is
taken into account whereas latter is not. It is not logically understandable, in the
absence of any reasoning, why a distinction should be drawn between the two.
Moreover, it is really difficult, if not impossible, to draw a line between "immediate
physical consequences " and "other consequences."

It was this difficulty which was faced by Denning L.J., in Roe v. Minister of
Health,5 where two plaintiffs entered a hospital for minor surgery and emerged
permanently paralysed from the waist down because of the contaminated ampoules of
the anaesthetic, nupercaine, which was injected spinally. It was found as a matter of
fact that the only consequences which could reasonably be anticipated was the loss of
quantity of nupercaine, but not the paralysis of the patients. It was argued on behalf of
the plaintiffs that the rule of Re Polemis should be applied in the present case. Denning
L.J., held that "by reason of the decision of this court in Re Polemis the hospital
authorities are liable for all the consequences of the initial carelessness of the nurse,
even though the consequences could not reasonably have been foreseen. But the
decision in Re Polemis is of very limited application. The reason is that "it is only when
those two preliminary questions of duty and causation are answered in favour of the
plaintiff, that the third question, remoteness of damage, comes into play. Even then
your ability to foresee the consequences may be vital. It is decisive where there is
intervening conduct by other persons. It is only disregarded when the

___________________________
 1. 1933 AC 461.

2. See, Lord Wright, "Legal Essays and Addresses, p. 113; See also, Treital, Law of Contract, 3rd Edn., p.

107.

3. Muhammad v. Ali, 1947 AC 414.

4. Clippons Oil Company v. S&D W Trustees, 1907 AC 291; Bobbins v. Meek, 1921 RTR 345.

5. (1954) 2 QB 66.

negligence is the immediate and Precipitating cause of the damage as in Re Polemis and
Thurogood v. Van den Berghs & Jurgens Ltd."1

Finding it difficult to apply the rule of Re Polemis as stated by him, Denning L.J.,
adopted a different approach by stating that "in all these cases you will find that three
questions, duty, causation and remoteness, run continually into one another. It seems
to me that they are simply three different ways of looking at one and the same
problem. Starting with the preposition that a negligent person should be liable for the
consequences of his conduct, the extent of liability is to be found by asking one
question: Is the consequence fairly to be regarded as within the risk created by the
negligence? If so the negligent person is liable for it; but otherwise not. That is the way,
in which Singleton L.J. and Hodson L.J. approached a difficult problem in Jones v. Livox
Quarries Ltd...., and I should like to approach this problem in the same way.2

It may be noted how nicely the restriction of "immediate physical consequences"

imposed on Re Polemis rule by the Law Lords in Liesbosch case was avoided by Denning
L.J. by stating that foreseeability is only disregarded when negligence is the "immediate
precipitating cause" of the damage. Although he avoided the distinction between
immediate "physical consequences" and "other consequences" resulting from the
restriction imposed by Law Lords in Liesbosch case, yet he could not apply the rule as
stated by him and, therefore, had to adopt a different approach of `risk' to enforce an
unworkable rule. Even if we accept the rule of Re Polemis, as stated by him, it is
unworkable in the difficult problems, as then before the court was. It would be difficult
to draw a line between `immediate' and `not immediate' or `precipitating' and `not
precipitating' cause of the damage. Accordingly, this principle along with the principles
laid down in Re Polemis subject to restriction imposed by the Law Lords in Liesbosch
case came into severe criticism in the hands of Lord Simonds of the PrivyCouncil in the
case of M.D. Ltd. v. O.T. Ltd.3 (known as Wagon Mound No. 1 case). The facts briefly
were that defendant's servants spilt oil on to the water in Sydney harbour which
ultimately caused the fire and the plaintiff's wharf was damaged. It was found as a
matter of fact that some foreseeable damage was caused to the plaintiff's wharf from
the spillage of the oil in that the oil had got on to the slipways and interfered with their
use but it was unforeseeable that fuel oil spread on water would catch fire. The full
court, of the Supreme Court of New South Wales following Re Polemis, held that
defendants were liable, but Privy Council reversed their decision and held that Re
Polemis should no longer be regarded as good law. It is the fore sight of the reasonable
man which alone can determine responsibility. Viscount Simonds said:

______________________

1. Weir, op. cit., pp. 126127.

2. Weir, op. cit., p. 127. He then stated: "Asking myself, therefore, what was the risk involved in handling

of the ampoules. I answer by saying that there was such a probability of intervening examination as to

limits the risk. The only consequences which could reasonably be anticipated was the loss of a Quantity of

nupercaine, but not the paralysis of a patient. The hospital authorities are therefore not liable for it. "Ibid".

3. 1961 AC 388. Weir, op. cit., p. 165.

"...the authority of Polemis has been severely shaken though lip service has
from time to time been paid to it. It does not seem consonant with current ideas
of justice or morality that for an act of negligence, however slight or venial,
which results in some trivial foreseeable damage the actor should be liable for all
consequences however unforeseeable and, however grave, so long as they can
be said to be direct."1

He then added that the rule of Re Polemis read along with restriction of Liesbosch case
is even unworkable and pointed out the difficulty faced by Denning L.J., in Roe's case in
enforcing it:

"Let the rule in Polemis be tested in this way. In the case of the Liesbosch the
appellants, whose vessel had been fouled by the respondents, claimed damages
under various heads. The respondents were admittedly at fault, therefore, said
the appellants, invoking the rule in Polemis, they were responsible for all
damage whether reasonably foreseeable or not. Here was the opportunity to
deny the rule or to place it secure upon its pedestal. But the House of Lords took
neither course; on the contrary, it distinguished Polemis on the ground that in
that case the injuries suffered were the "immediate physical consequences" of
the negligent act. It is not easy to understand why a distinction should he drawn
between "immediate physical" and other consequences, nor where the line is to
be drawn. It was perhaps this difficulty which led Denning L.J. in Roe v. Minister
of Health.., to say that foreseeability is only disregarded when the negligence is
the immediate or `precipitating' cause of the damage. This new word may well
have been thought as good a word as another for revealing or disguising the fact
that he sought loyally to enforce an unworkable rule." Accordingly "the Polemis
rule by substituting `direct' for reasonably foreseeable consequences leads to a
conclusion equally illogical and unjust... It is the foresight of the reasonable man
 which alone can determine responsibility.2

The essence of the decision is that in negligence reasonable foresight is the

criterion not only for the existence of a duty of care but also for remoteness of
damage,3 and the Privy Council clearly attached importance to the supposed
illogicality of using different tests at different stages 4 of the enquiry in any given
case.5

It should be noted that the decision of the Privy Council in Wagon Mound No. 1,
is not formally binding on English, East African and Indian courts; whereas the
decision of the House of Lords or English court of Appeal is.

________________________

1. 1961 AC 166.

2. 1961 AC 424.

3. In wagon Mound (No. 2), the privy Council held that foreseeability is the test for remoteness of damage

in cases of nuisance also, 1967 AC 617.

4. For Example, Denning L.J. in Roes's case adopted different test of `risk'.

5. Viscount Simonds said: "If some limitation must be imposed upon the consequences for which the

negligent actor is to be held responsible—and all are agreed that some limitation there must be—why

should that test (reasonable foreseeability) be rejected which, since he is judged by what the reasonable

man ought to foresee, corresponds with the common conscience of man kind, and that (the direct

consequences) be substituted which leads to nowhere but the never ending _ and insoluble problems for

causation, Ibid., p. 423.

Nevertheless English and East African judges seem to have veered away from
the doctrine of precedent and to have accepted the Privy Council's decision as
law even though in no case so far has it been strictly necessary for them to
choose between the two decisions1—The Re Polemis and the Wagon Mound No.
1. The two important decisions East African and English, just after the decision
of Wagon Mound No. 1, may be mentioned which can be regarded as the turning
point in the development of remoteness principles in their respective lands.

It may not be out of point to mention here that in East Africa in 1962 in the case
of Overseas Touring Co. (Road Services) Ltd. v. African Produce Agency (1949)
Ltd.,2 the facts were that the plaintiff entered a contract with the first defendant
whereby the latter would carry 400 tins of kerosene from Kisumu to Kampala.
The first defendant's lorry was in collision with the bus of the second defendant;
of the consignment only 32 tins were delivered. It was led in evidence that some
of the missing 368 tins were broken open in the accident and that others were
 stolen by persons unknown after the accident through no fault or neglect of the
first defendant. The driver of the second defendant's bus was found to be
responsible for the collision. The Uganda High Court, following Re Polemis, held
that "the loss flowed directly from the negligence of the appellant's servant
which caused the accident." But on appeal, Sir Alastair Forbes, Justice of the
East African Court of Appeal, held that "the learned judge was not justified in
finding that there had been a loss of the 368 tins and that the loss flowed
directly from the negligence of the appellant's servant which caused the
accident... In Overseas Tankship (UK) Ltd. v. Morts Dock and Engineering Co.
Ltd., (1961) AC 388, however the Privy Council has laid it down that the
essential factor in determining liability for consequences of a tortious act of
negligence is whether the damage is of such a kind as a reasonable man should
have foreseen, and, further, that a man should not escape liability however
`indirect' the damage, if he `foresaw' or could reasonably have foreseen the
intervening events... Applying that test in the instant case, it appears to me
that, in the

__________________________

1. See English cases: Stevens v. B.S.G.H.M. Committee, (1963) 107 S 478, per Paul J.; Doughty v. T.M.

Co. Ltd., (1964) 1 QB 518 (525), per Lord Pearce, 528, per Harman L.H. (whether or not Wagon Mound is

binding, we ought to treat it as the law") 532, per Deplock L.J. (Re Polemis "is no longer law"); Steward v.

W.I.T. Ltd., (1964) 2 Lloyds Rep 171; Bradford v. R.R. Ltd., (1967) 1 WLR 337; Cook v. Winfen, (1967) 1

WLR; Tremain v. Pike, (1969) 1 WLR 1556; Wieland v. C.L.C. Ltd., (1969) 2 All ER 1008; Malcom v.

Broadhurst, (1970) 3 All ER 737; Draper v. Jjodder, (1972) 2 QB 556. See East African cases: Woodruft v.

Ditport, (1964) EA 404; Turner v. U.T. Co., C.S. No. 390 of 1966 (U); Nbuuya S/o Subajiwa v. Jackson S/o

Chilawa, case No. 193 of 1972, Tanzania High Court digest; Sanga v. Sangi, (1968) Tanzania High Court

Digest, p. 180; A.V. Ratanshi v. S. Singh, Tanzania High Court Digest, p. 17; East African Rlys and

Harbours v. Lalani, 1970 EA 443; K.N. Nishyiranbeere v. Mubande Distt. Admn., 1970 EA 443 K 11;

Nishyiranbeere v. G.M. Lawago, 1972 HCB 63; Luch v. Robinson, 1913 EA 108; Thima Nantango v. Hiral

Mohd, CA No. 59 of 1974 (EACA), 1975 HCB 3; Sawuya v. Kymenyero, 1976 HCB 13.

2. 1962 EA 190. There is no case law in India directly on the point. However, in Halligue v.
Mohansundram, MANU/TN/0341/1951 : AIR 1951 Mad 1056, Mack, J. observed that damages can

be claimed on the basis of nervous shock directly attributable to negligence and Indian case law based on

old English decisions should in this domain of Law, have a similar orientation. See also Governor General in

Council v. Surajmal, AIR 1942 Nag 256; Deepchand v. Manakel, AIR 1939 Nag 154.

conditions prevailing in East Africa, it is to be foreseen that a traffic accident

may result in a vehicle involved being left unattended through no fault of the
owner, and that in such a case loss of the contents of the vehicle through
pilferage is not merely foreseeable but highly probable."1

Similarly, in English Law in 1962 in the case of Smith v. Leach Brain & Co., 2 the Court of
Appeal followed the decision of Wagon Mound No. 1. The facts briefly were that the
plaintiff was employed by the defendants as labourer and galvaniser; his job was to
remove galvanized article from a tank of molten metal. The defendants were negligent
in not providing adequate protection. Smith died of cancer in 1953. The court found that
the burn contributed to, or caused in part, at any rate, the cancer and the death. It was
argued that the court is bound by the principles laid down in the Re Polemis case. But
Parker C.J. said:

"that I would follow, sitting as a Trial Judge, the decision in the Wagon Mound
case rather than the Polemis case itself particularly when that case has been
criticised by members of the House of Lords ... although followed by the court of
Appeal."3 He then held the defendants liable by stating that:

"the Judicial Committee in the Wagon Mound case did not have what I may call,
loosely, the thin skull eases in mind. It has always been the law of this country
that a tortfeasor takes his victim as he finds him.4 If the Judicial Committee had
any intention of making an inroad into that doctrine. I am quite satisfied that
they would have said so. The Judicial Committee were, I think, disagreeing with
the decision in the Re Polemis case that a man is no longer liable for the type of
the damage which he could not reasonably anticipate. The test is not whether
these employers could reasonably have foreseen the type of injury he suffered,
namely, the burn. What, in particular case is the amount of damage which he
suffers as a result of that burn depends upon the characteristic and constitution
of the victim."5

Thus, both English and East African courts followed the decision of Wagon Mound No. 1,
and deviated from the doctrine of common law precedent. Although it was not
necessary for them to do so, for, even if they would have applied the principles of Re
Polemis, the same results would have been there. However, Smith's case also decided
that if the defendant could reasonably anticipate the `type of injury', then the question
of extent of damage in the case of `physical disability' is immaterial because tort feasor
takes his victim as he

____________________________

1. Overseas Touring Co. (Road Services) Ltd. v. African Produce Agency (1949) Ltd., (1962) EA 190 See

also E. Veitch, East African cases on the Law of Tort, p. 39.

2. (1962) 2 QB 405; Weir, op. cit., p. 169.

3. Ibid., p. 171.

4. In support of this, Parker C.J. quoted a short passage in the decision of Kennedy Judian Dulle v. White,

(1901) 2 KB 669: "If a man is negligently runover or otherwise inelegantly injured in his body, it is no

answer to the sufferer's claim for damages that he would have suffered loss, injury or no injury at all, if he
 had not had unusually think skull or unusually weak heart." He also said, "to the same effect is a passage in

the judgment of Scu J., the Arpad case, 1934, p. 202.

5. Weir, op. cit., p. 171.

finds him. But where the subsequent injury/illness is not as a result of the accident, the
wrongdoer will not be held liable if it is not foreseeable.1

It should, however, be noted that in Smith's case, Parker C.J. on the one hand,
expressly rejected the principles of Re Polemis and, on the other hand, accepted the
principles of Wagon Mound 1. Yet his decision is not in consonance with the principles of
"reasonable foresight" laid down in the Wagon Mound No. 1. If one asks the question,
was the claim in respect of damage of the same type as could have been foreseen? Lord
Parker himself accepted, that a reasonable man would have foreseen the type of injury
i.e., the "burn", and not that the burn would also cause cancer and death after three
years. Lord Parker C.J. therefore, should not have perpetuated an unforeseeable
`physical disability' by stating that `tortfeasor takes his victim as he finds him', which is
a departure from the principles laid down by the Privy Council in Wagon Mound No. 1.
For Viscount Simond in that case clearly attached importance to the supposed illogicality
of using different stages of the enquiry in any given case. Yet Parker C.J., (following
Wagon Mound No. 1) made an exception of physical disability by saying that Viscount
Simonds was not having "thin skull cases" in his mind. However, it is submitted that this
exception leads to insoluble problems2 and, if followed, would become an unmatchable
serpent, going beyond the area of reasonable foresight. It has also created problems in
Nervous shock cases which led the courts and the jurists3 to adopt a reasonable
approach that the plaintiff should be presumed as a normal healthy person. This
principle is also in consonance with the general principle of law of torts that the
wrongdoer can reasonably anticipate the type or kind of injury to a normal healthy
plaintiff unless his abnormality or susceptibility is known to the defendants.4 Be this as
it may, even if we take the decisions of

__________________________

1. See, Hogan v. Bentwick W.H; Colliers (owhers) Ltd., (1949) 1 All ER 588. The same principles have been

followed by the East African Court of Appeal in the case of George William Bumka v. P. Obeh, (1974) HCB

273. In this case the appellant sustained severe head injuries for which he was being treated at Mulago

Hospital and two months later he was found to be suffering from diabetes mellitus which in turn lead to

blindness. The Uganda High Court, on the basis of Medical Report, held that the diabetes and blindness

were coincidence and did not result from the accident. On appeal, the Fast African Court of Appeal upheld

the decision of the Uganda High Court with the remark that "...It was unfortunate that no physician was

called upon to give evidences and text books state that it (diabetes and consequent blindness') could

`develop as a result of severe physical injuries especially to the head as was the case here. However, on

the basis of the Wagon Mound case, in this case the diabetes was not a result of the accident. Consequently

the blindness which resulted from the diabetes could not be said to have resulted from the accident. The
 test of foreseeability applied and so the diabetes and the blindness were not damage of such a kind as a

reasonable man could have foreseen," Ibid., p. 274.

2. See, Bourhill v. Young, 1943 AC 92.

3. Bourhill v. Young, per Lord Wright "Can it be said, apart from every thing else, that it was likely that a

person of normal nervous strength would have been affected in the circumstances by illness as the

appellant was? Does the criterion of reasonable foresight extend beyond people of ordinary health or

susceptibility, or does it take into account the susceptibilities or infirmities of those affected which the

defendant neither knew nor could reasonably be taken to have foreseen? See also Lord Porte in Bourhill v.

Young, cit. ibid., and Chadwick v. B. Rlys. Board, (1907) 1 WLR 912.

4. See also, S.P. Singh Nervous Shock & Tortious Liability, The Indian Advocate, Vol. 13 No. 2 & 3, 1973,

pp. 8194, Winfield, op. cit., pp. 124-126.

Smith's case, as it stands, what would happen in those cases where the question of
property is in issue rather than plaintiff's body, leaving aside the question of plaintiff's
impecuniosity? Would this principle equally apply to dilapidated, weak and normal
property'? What would happen in those cases where the type of injury is foreseeable,
but it happened in an unforeseeable manner? The East African Court of Appeal faced
this problem in the case of O.T. Co. (Road Services) Ltd. v. African Produce Agency Ltd.,
where Sir Alastair Forbes Justice held that "I do not think it incumbent on the
respondent to show the precise manner in which it happened". To the same effect is the
judgment of the House of Lords in an important case of Hughes v. Lord Advocate.1

The facts briefly were that the employees of the Post Office opened a manhole in the
street and in the evening left the manhole covered by a tent unattended. They placed
warning paraffin lamps round the tent. The plaintiff, a boy of eight, alongwith his uncle,
a boy of ten, took a lamp and entered the manhole. As they emerged, the lamp was
knocked into the hole and a violent explosion took place, with flames shooting thirty
feet into the air. The plaintiff was knocked back into the whole where he sustained
serious burns. It was found as a matter of fact that it was reasonably foreseeable that
the children would play with the unguarded paraffin lamps which might cause burn
injuries, but it was unforeseeable that a paraffin lamp would explode and would cause
serious burn injuries. All the Law Lords held the defendants liable in the following
words:

Lord Guest stated: "In order to establish a coherent chain of causation it is not
necessary that the precise details upto the accident should have been
reasonably foreseeable: it is sufficient if the accident which occurred is of a type
which should have been foreseeable by a reasonably careful person. An
explosion is only one way in which burning can be caused. Burning can also be
caused by the contact between liquid paraffin and a naked flame. In the one
case paraffin vapour and in the other case liquid is ignited by fire. I cannot see
 that these are two different types of accident. They are both burning accidents
and in both cases the injuries would be burning injuries. Upon this view the
explosion was an immaterial event in the chain of causation. It was simply one
way in which burning might be caused by the potentially dangerous paraffin
lamp...The defender cannot escape liability by contending that he did not
foresee all the possibilities of the manner in which allurements—the manhole
and the lantern would act upon the childish mind."2

Lord Pearce stated: "The defenders are therefore liable for all the foreseeable
consequences of their neglect. When an accident is of a different type and kind
from anything that a defender could have foreseen, he is not liable for it (see
the Wagon Mound). But to demand too great precision in the test of
foreseeability would be unfair to the pursuer since the facets of misadventure
are innumerable. The accident was but a variant of the foreseeable. It was to
quote the words of Denning L. J., in Roe v. Minister of Health "within the risk"
created by the negligence. No unforeseeable, extraneous, initial occurrence fired
the train. The

________________________

1. 1963 AC 837.

2. Weir, op. cit., p. 175.

resulting damage, though severe, was not greater than or different in kind from
that which might have been produced had the lamp spilled and produced a more
normal conflagration in the hole.1

Lora Reid stated: "The fact that the injuries suffered by the appellant, though
perhaps different in degree, did not differ in kind from injuries which might have
resulted from an accident of a foreseeable nature. The cause of this accident was
a known source of danger, the lamp but it behaved in an unpredictable way.2

Thus, the House of Lords held that it was quite unpredictable that a lamp might
explode, but post office men were in breach of duty in leaving the manhole unattended
because they should have reasonably anticipated that boys might take lamp into the
shelter and that, if the lamp fell and broke, they might suffer injury from burning. So
the lamp, a known source of risk, caused injury through an unforeseeable sequence of
events, but the defendant were held liable. It is, therefore, not necessary that the
precise details leading upto the accident should have been reasonably foreseeable. It is
sufficient if the accident which occurred is of a type which should have been foreseeable
by a reasonably careful person.

The effects of this decision are multifarious: (a) this decision should be taken as an
authority in favour of the risk principle in so far as it typifies the means where by the
injury accrues (b) the House of Lords corrected their mistake which they committed in
Liesbosch case by putting the restriction to `immediate physical consequences' on the
Re Polemis rule; (c) the House of Lords echoed the principle with one voice that it is
sufficient if the kind of damage is foreseeable, the defendant will be liable even though
it is much greater in extent than would have been reasonably anticipated; and (d) that
it is not necessary that the precise details leading upto the accident should have been
reasonably foreseen.3

From these decisions of the respective Highest Courts—Hughes v. Lord Advocate and
O.T. Co. (R.S.) Ltd. v. A.P. Agency, it follows that the Re Polemis case has been buried
and that Wagon Mound No. 1 has been legally given a house to live in England and in
East Africa. Although these decisions of the House of Lords and East African Court of
Appeal are on the lines of Wagon Mound No. 1 and possibly to some extent have
developed it, but there still remains the questions as to how far it is necessary to
differentiate the `degree or extent' of damage to persons and property, the `ways or
manners' of causing the damage and the `kinds' of damage?

__________________________

1. Weir, op. cit., p. 176.

2. Ibid.

3. See also S.C.M. (United Kingdom) Ltd. v. W.J. Whittal & Sons, (1971) 1 QB 337, where an electric cable

alongside the road was damaged due to the negligence of defendant's workmen. Consequently, there was

power failure for seven hours in the plaintiffs typewriter factory. The plaintiff argued that due to power

failure these was damage to materials and machines and consequent loss of production which could have

been foreseen by the defendants. The court held that as the defendants knew that the said electric cables

supplied electric current to the factories in the neighbourhood, they could foresee the consequent loss of

production, and therefore, they were liable for the damage caused to the plaintiff. See other cases:

Cunningham v. Harrison, (1973) 3 All ER 463; Donnelly v. Joyce, (1973) 3 All ER 475; Robinson v. Post

Office, (1974) 2 All ER 737.

2. Degree or extent of damage

Under the rule of Hughe's case, if the kind of damage to a human being is foreseeable,
the defendant will be liable even though it is much greater in extent than would haven
been reasonably anticipated from the negligence.1 Where, however, the extent of
damage is aggravated by inherent weakness (like premalignancy, illness, thinskull or
unusually weak heart etc.) in the subject, full liability is admitted in the case of people
on the principle tortfeasor takes his victim as he finds him."2 But this principle, it is
submitted, is not in consonance with the principle of reasonable foresight laid town in
Wagon Mound No. 1, and even in other areas of the law of torts.3 Prof. Goodhart,
however, proffers the argument that a wrongdoer ought reasonably to anticipate that
his victim might suffer from some abnormal susceptibility.4 It is submitted that such a
hypothesis would dismantle the foreseeability test by striking at the fundamental rule
that liability is always determined on an assumption of normality. 5 However, everyone
would agree that life is more valuable than property and on this basis it may logically be
argued that liability in the case of physical injury to human being should be attached as
far as possible. But such a reason would be material when considering what steps
should be taken in order to prevent any injury. It can hardly relate to the extent of the
defendant's liability once that injury has been inflicted. Injuries can never be repaired
by damages, nor is sanctity of life upheld by their award. It is, therefore, submitted that
in the absence of any logical reasoning, the test of reasonable foresight towards a
normal healthy person should be followed rather than the law as it stands now, unless
overruled, that the extent of damage if aggravated by some inherent weakness in the
subject, full liability is attached in the case of people.

Another related question is about the degree or extent of damage to property should
the rule "defendant _ takes his victim as he finds him" be applied to dilapidated, weak
and normal property? The answer to this is not easy and the matter awaits an
authoritative pronouncement. However, if we look at the case of Liesbosch Dredger v.
S.S. Edison,6 the House of Lords, while restricting the rule of Re Polemis, stated the
principle of "immediate physical consequences" in relation to extent of damage to
property. Similarly in Smith v. Leach Brain & Co.7 Parker C.J., though he was speaking
with reference to persons, used language of wider import." The Judicial Committee (in
Wagon Mound No. 1) were, I think, disagreeing with the decisions in the Polemis case
that a man is no longer liable for the type of damage which he could not reasonably
anticipate. The Judicial

________________________

1. Per Lord Reid in Hughes v. Lord Advocate, discussed supra; See also, O.T.Co. (R.S.) Ltd. v. A.P. Agency,

discussed supra.

2. Smith v. Leech Brain & Co., discussed supra; and George William Bumba v. Philip Okech, discussed

supra.

3. See Bourhil v. Young, 1943 AC 92 (a case on nervous shock); Bedwill v. Braint, The Times,

May 9, 1956.

4. 76 Law Quarterly Review 581.

5. 76 Law Quarterly Review; see also Dais, CLJ 1962.

6. 1933 AC 448.

7. Discussed supra. See also, L.J. Denning in Roe v. Minister of Health, op. cit.
Committee were not, I think, saying that man is only liable for the extent of damage he
could not anticipate, always assuming the type of injury could have been
anticipated.1Coupled with all these decisions, the conclusion seems to be that if the type
of damage is foreseeable, the wrong doer would also be liable for any extent of damage
to property. It would, thus, follow that so far as degree or extent of damage is
concerned, the Re Polemis `direct' rule is still surviving and the Wagon Mound has not
changed it.

3. Ways or manners of causing the damage

In Wagon Mound No. 1, the Privy Council held that foreseeability was the basic test of
liability and criticised the `direct rule' of Re Polemis where both "type of injury" and
"precise manner" in which it was caused were not reasonably foreseeable. It, therefore,
follows that the "manners or ways" in which the injury is caused should also be
foreseeable. But the East African Court of Appeal in 1962 in O.T. Co. (R.S.) Ltd. v. A.P.
Agency2 and the House of Lords in 1963 in Hughes v. Lord Advocate3 (where the type of
foreseeable injury occurred in an unforeseeable manner), held that the chain of events
leading upto the injury was irrelevant so long as the wrongful act could be foreseen as a
possible factual cause of the kind of injury. This principle is, more or less, in consonance
with the direct rule of Re Polemis in so far as ways or manners are concerned, and thus
in this respect again the basic rule of reasonable foresight laid down in the Wagon
Mound No. 1 has been rejected by the House of Lords and East African Court of Appeal.

Some development has thus been brought about by both the biggest Courts to the rule
of Wagon Mound No. 1; otherwise there would have been no liability in most of the
cases if the courts started distinguishing foreseeable and unforeseeable "manners or
ways" of causing the foreseeable damage or injury. From these decisions, however, it
follows that only the, "kind of damage" must be foreseeable and not the "precise ways
or manners" in which it is caused. But in an English case of Doughty v. Turner
Manufacturing Co. Ltd.,4 the unforeseeable "manner or ways" which created the effects
of wider range than reasonably foreseeable, the court of Appeal considered the "ways or
manners" as relevant. In that case the plaintiff was injured not by the splashing of liquid
in a vat when the lid fell into it, but by the effervescence resulting from the interaction
of the material from which the lid was made with he substance in the vat. The Court of
Appeal, however, held that the extent of the effects of the effervescence was wider than
would have been the extent of any splashing caused by the fall of the lid. Hence there
was no liability. Although Hughes and Doughty cases can be distinguished, the line of
distinction is very thin. This proves that since the Wagon Mound No. 1, the courts have
been forced into a position in which they are bound to differentiate somewhat narrowly
between different ways or manners of causing such injury. The question is how far
these differentiations should go?

______________________
 1. Ibid., p. 156; See also O.T. Co. (R.S.) Ltd. v. A.P. Ageney, discussed supra.

2. 1943 AC 92.

3. 1963 AC 837.

4. (1964) 1 QB 518.

Since the basic test is foreseeability, the answer would seem to lie somewhere in the definition of what is
reasonably foreseeable. Here lies ambiguity.

4. Kinds of damage or injury

From the decision of the House of Lords in Hughes v. Lord Advocate and that East
African Court of Appeal in O.T. Co. (R.S.) Ltd. v. A.P. Agency it is now clear that if kind
of injury or damage is foreseeable then the defendant will he liable, irrespective of the
"precise manner" and "degree" of such damage. But Hughes and O.T. Co. (R.S.) Ltd.
cases raise a query whether, and, if so, how far it is necessary for the law to
differentiate "kinds" or "types" of damage. Should the law be concerned with the type of
injury? If so how broadly or narrowly should a kind or type of injury be formulated? The
lack of any guidance in this respect led to the difficulties encountered by Pyne J., in an
English case of Tremain v. Pike,1 where the plaintiff while employed as a herdsman by
the defendants contracted a rather rare disease, leptospirosis, which is normally
contracted through contact with rat's urine. This disease was neither known to the
farming community nor they reasonably ought to have known that the disease existed
as opposed to being bitten by a rat or eating food contaminated by rats. The learned
judge held that the defendants were not liable because they could not have realised as
reasonable men the extent to which the farm was infested with rats so as to give rise to
any sort of danger whatsoever from their presence. Here it is not possible to argue
against. But the learned judge observed that even if the defendants had been in breach
of duty, in that they ought to have known of the extent of the infestation by rats and
ought to have foreseen that the plaintiff was or might be exposed to some general
hazard involving personal injury, illness or disease in consequence of such infestation,
they were still immune from liability on the ground, that the disease of leptospirosis was
at best a promote possibility which they could not reasonably foresee. According to the
learned Judge, the disease in question was "not comparable to the other human
disabilities which may flow from an infestation of rats." 2 The kind of injury suffered here
was a disease contracted by contact with rat's urine. That was entirely different in land
from the effect of a rat bite or food poisoning contaminated by rats. In this he relied by
way of comparison and contrast, upon the earlier decisions in Smith v. Leach Brain &
Co. Ltd.,3 and Bradford v. Robinson R. Ltd.,4 According to him, in those cases, the risk of
injury from a bum or from extreme cold was foreseeable and it was only the degree of
injury or the development of the sequelae was not foreseeable.
It would appear from this judgment as to how narrow level of abstraction in respect of
foreseeable damage was invoked by the learned judge in order to determine the liability
of the defendant. It follows that in Hughes v. Lord Advocate,

__________________________

1. 1969 WLR 1556.

2. 1969 WLR 1561.

3. (1962) 2 QB 405, discussed supra.

4. (1967) 1 WLR 337. Here in the depths of worse winter for years the plaintiff radio engineer was required

to drive in unheated vans from Honetion to Bedford and back, a trip of 24 hours in two days; he suffered

frostbite, a rare complaint in England, and recovered damages.

if the other boy in the manhole would have died of heart attack due to sound of
explosion of the paraffin lamp, the defendants were not liable because the death
occurred due to unforeseeable type of injury. Such an approach may or may not be
rational or reasonable in principle. The real question is whether such approach is
justifiable and that the narrow level of abstraction to be invoked should be so low as
has been done in Tremain case. It is submitted that if this is the way to distinguish
different kinds of injuries, no advantage is gained and that, in essence, no avoidance is
possible. Where does the distinction lie between Hughes 1 and Doughty2 cases, or, where
does the distinction lie between Bradford3and Tremain4 cases?

Surely, it does only in respect of the extent to which a particular court in the individual
case was prepared to analyse more or less minutely the way and the type of injury
caused. Thus, Tremain case differentiated between injury from rats by biting and injury
from rat's infection. Yet it may be said that the only real type of injury to be considered
was `injury by rats, however the precise injury was suffered or whatever nature the
precise injury partook. The rationale of these distinctions is said to be the element of
foreseeability. But my submission is that it should not be viewed in isolation and if it is
viewed at its narrowest level of abstraction, then almost nothing will be foreseeable.
Vague generalizations of foreseeability will cover almost everything, whereas 'burns' will
not include `cuts'. This is what has happened in Tremain cases; whereas in Smith  and
Bradford cases the court has taken a more general concept of foreseeability and a
broader level of abstraction in respect of kind or type of injury.

5. Concluding remarks

It has been seen that the development of remoteness principles has really made the
liability very remote in English law and consequently in East African law. The main
problem, however, is: Where to draw a demarcation line between the narrowest and the
broadest level of abstraction in respect of foreseeable damage? It has been said that it
is a question of public policy. Lord denning in the Court of Appeal was happy to expose
the true issue, that of public policy'5 Even the opinion of the Judicial Committee in
Wagon Mound No. 1 manifested this policy approach to the whole notion of negligence
when their Lordships discussed the moral and social consequences of the correct
approach to the

________________________

1. (1967) 1 WLR 337. Here unforeseeable manner i.e., explosion of lamp, caused foreseeable injury of burn

but of greater degree. The court did not consider the ways or manners as relevant and held the defendants

liable.

2. Discussed supra. Here unforeseeable manner i.e., effervescence from falling the lid into the vat, caused

injury of foreseeable wider range than by splashing. The court considered the ways or manners as relevant

and held the defendants, not liable.

3. Discussed supra. The court took broader concept of foreseeability in respect of kind of injury (i.e..

foreseeable a rare complaint in England) and held the defendants liable. See also Smith v. L.B. & Co.

Discussed supra, where foreseeable injury of burn caused unforeseeable cancer & death and the defendants

were held liable.

4. Discussed supra. Here some injury by rat's biting' or by contamination of food was foreseeable, but court

took very narrow concept of foreseeability in respect of type of injury i.e., leptospirosis caused by rat's

urine and held defendants not liable.

5. Doreset Yacht Co. Ltd. v. Home Omce, (1969) 2 QB 412 (426); House of Lords, 1970 AC 1 (4).

problem of defining the duty of care of the remoteness issue.1 The decision in the
Wagon Mound No. 2 in relation to nuisance and remoteness again illustrates the policy
consideration. But the Privy Council left open the whole question relating to tort of
absolute, or so called strict, liability2 It appears that some chasm exists even with the
courts because so far no court has been prepared to determine conclusively whether
directness or foreseeability should be the appropriate test in such instances.3 In this
context it is submitted that the distinction between foreseeability and unforeseeability is
an inherently vague concept.4 It is not for nothing that the foreseeability rule has been
criticised by some authors and has been shown to be not a reliable tool for courts to
employ.5 Even the eminent jurist, like Glanville Williams himself after extolling the
intellectual attraction of the foreseeability principle, has promptly abandoned it when led
by an ineluctable logic to a conclusion as to the Thin Skull cases, which militates against
a latent sense of injustice for plaintiffs.6 In the same context Prof. Goodhart, has to
formulate his minor premise of what is deemed to be foreseeable very broadly in order
to reach a conclusion favourable to plaintiffs.7 All these together set the application of
the whole foreseeability principle more or less at hazard. Accordingly, in this extensive
and everwidening field the Wagon Mound (No. 1) principle has no place whatsoever.
The foreseeability rule in relation to remoteness, as pointed out earlier, has already
been rejected in respect of "degree or extent" of damage, 8 "Physical
disability"9 "financial disability"10 and the "manners or ways"11 in which a foreseeable
kind of damage is caused. Even in the area of "kind or type of injury" 12 the
foreseeability rule, as discussed earlier, has created problems and is not working well.
In India since the law of tort is based on common law principles and the decisions, in
many areas, are also on the lines of English decisions, it is submitted that the Indian
courts are bound to face the same problems, at least in relation to precise kind of
foreseeable damage or injury. Here greater injustice is possible than justice to the
plaintiff, depending on

________________________

1. 1961 AC 388."….it does not seem consonant with current ideas of justice or morality that for an act of

negligence, however, slight or venial, which results in some trivial foreseeable damage the actor should be

liable for all consequences however unforeseeable, so long as they can he said to be direct." Per Viscount

Simonds, Weir, op. cit., p. 166.

2. (1967) 1 AC 517. The Judicial Committee held that foreseeability is relevant in nuisance also and applied

too strict a test in order to hold the defendant liable.

3. "It is proper to add that it is not necessary to consider the so called rule of "strict liability" exemplified in

Rylands v. Fletcher, 1868 LR 3 HL 330" Per Viscount Simond in Wagon Mound No. 1, Weir, op. cit., p. 168.

4. See, for example, Wagon Mound No, 2. Facts were same in both the cases. In the former it was not

foreseeable but in the later it was.

5. See S.P. Singh Nervous Shock & Tortious Liability. The Indian Advocate, Vol. XIII, No. 3 & 4, pp. 81, 9l;

Lindon, Down with Foreseeability, (1969) 47 Canadian Bar Review 545; S.P. Singh "Remotness Principles

and unjust results in common law and in East Africa", JILI 1981 Vol. 231.

6. (1961) 77 Law Quarterly Review 179 (196); See also Dais, CLJ 1962.

7. (1969) 76 Law Quarterly Review 581; See also Dais, CLJ 1962.

8. Discussed supra see subheading, "Degree or Extent of Damage."

9. Ibid.

10. Liesbosch Dredgrer v. S.S. Edison, op. cit.

11. Discussed supra, see subheading, "Ways or Manners of causing the damage."

12. Discussed supra, see subheading, "Kind of damage or injury".

the attitude of the courts. The purpose of the law of torts must be to serve the interests
of justice. Whatever analysis of negligence are invoked, whatever distinctions are made,
they must stem from the ultimate desire and purpose of the law to achieve a just result
in any given case. To do that all the time is difficult. But, at least justice must appear
from what is done by the courts. At the present time, the existing attitude of the English
and Indian courts reduces the chances of achieving just result. The judicial policy has
now shifted in favour of the defendant and one is constrained to wonder why this should
be so.1

The Law of Tort must pay due regard to the point of view of both plaintiff and
defendant. The basic idea has been that the wrongdoer should redress the injury of a
person who has suffered it without his fault. But this does not mean that the wrongdoer
should be unduly burdened. This requires a fine balancing and can be best accomplished
if its principles are such as to leave room for the exercise of discretion. A good deal is
still possible even within the framework of the fault principle as declared by the Judicial
Committee in Wagon Mound No. 1 and that is by varying far more from the `standard
of care' as occasion demands. This should be indulgently low or stringent to the utmost
degree. It may be done by raising the standards of care in common law negligence
when the interests of the plaintiffs demand that there should be liability. The fault
principle could thus in large measure may even now be applied in favour of plaintiff as
well as defendant, but whether this is done or not will entirely depend on the
sympathies of the courts in India and elsewhere. But it should be pointed out here that
the concept of reasonable foresight itself is not a reliable tool for the courts to employ
because it is capable of the most catholic interpretations. It is in this context one harks
back to the principles laid down by the Re Polemis case. What has not always been
realised is that the principle of Re Polemis could like wise have yielded a comparable
range of results. Although it was in favour of the injured persons, it was sufficiently
broad so as to enable a court, if it so wished, to absolve the wrongdoer of his alleged
liability in great many instances.2 It was never understood in a sense that would have
enabled all this, and perhaps more, to be accomplished. "I am not sure it has been
everywhere understood"3 so said one of the famous modem judges. However, now it is
extremely unlikely that the rule in Re Polemis will ever be resurrected under its own
name either in India or in England. But it is most likely that when the disturbance
created by the Privy Council's decision in Wagon Mound has finally subsided, the
endresult will be found to be a little different from what went before.

_______________________________

1. It is possible "that in view of the legislative creation of strict liability (i.e., statutory duty) in the interest

of plaintiff the balance is restored by bending the common law principles so that they favour defendants."

See Dais, CLJ 1962. But, on discussion. Mrs. Kamini Singh, disagrees with this view, for, statutory duty is

generally in relation to Employer versus Workman, i.e., Rich versus Poor. Statutory duty, thus, creates

economic justice by imposing the rule of strict liability which may not be so in other cases.

2. See Payne, (1952) 5 Current Legal Problems, 189: (1962) 25 Modern Law Review, p. 1. See also, Dais,
CLJ 1962:

3. Lord Wright Re Polemis, (1951) 14 Modern Law Review, pp. 393, 410.

 
 

 
  

© Universal law Publishing Co.

   

CHAPTER 7

CAPACITY TO SUE AND BE SUED

SYNOPSIS

1. Introduction

2. Who cannot sue?

2.1. Convict

2.2. Alien enemy

2.3. Married woman

2.4. Husband and wife

2.5. Bankrupt

2.6. Infant/Minors

2.7. Corporation

2.8. Foreign State
3. Who cannot be sued?

3.1. Sovereign or King

3.2. Act of State

3.3. Foreign Sovereign and Ambassador

3.4. Infant/Minors

3.5. Lunatic

3.6. Drunkard

3.7. Corporation

3.8. Trade Union

3.9. Married Woman

1. Introduction

In the law of torts the general rule is that all persons are entitled to sue and are liable
to be sued. This rule is subject to certain exceptions which may be considered under
two heads:

1. Who cannot sue?

2. Who cannot be sued?

2. Who cannot sue?

The person who cannot sue due to personal disability include the following, among
others.

2.1. Convict

A felon or convict is a person against whom judgment of death or penal

servitude has been pronounced on any charge of treason or felony. In England,
a convict who is sentenced to death or penal servitude or any charge of treason
or felony cannot sue for wrongs to his property. But a person, who is not a felon
that is, a person who has been sentenced to a term of imprisonment only, can
sue in his own name for torts to his property. However, where the wrong is not
with respect to property, but to the person, as for example, assault or slander, it
would be open to the convict to maintain an action.

But in India a convict can sue both for a wrong to his person or to his property.
However, he can not sue when his property has been lawfully forfeited under
 sections 126, 127 and 169 of the Indian Penal code.

2.2. Alien enemy

An alien enemy is a person who voluntarily resides or carries on business in a

country at war with India. As residence in enemy territory is the real test, even a
citizen of India resident there will fall within the description. An alien enemy
residing out side India or in India without the permission of the Government
cannot sue in an Indian court. However, if he resides with the permission of the
Government, then he can sue here.

In English Law, an alien enemy cannot maintain an action except when duly
licensed or by an Order-in-Council, or unless he comes into British Dominions
under a flag of truce.

2.3. Married woman

At common law a married woman could not sue without her husband being
joined as a party. However, under the Law Reform (Married Women and
Tortfeasors) Act, 1935, she can sue in tort as if she were a feme sole.

In India there is a Married Women's Property Act of 1874. Under section 7 of

this Act, a married woman may sue in tort just as a feme sole, and any damages
recovered by her becomes her separate property, and any damages recovered
against her are payable out of her separate property. It must be noted that this
Act does not apply to Hindus, Sikhs, Jains and Muslims. Hence, these
communities will be governed by their personal laws. According to personal laws
of these communities, a woman can sue in respect of her separate property
without joining her husband in the suit. But in the case of Burmese Buddhist
wife, husband is necessary party, for, the wife holds all property.

2.4. Husband and wife

In England actions between husband and wife were not possible under common
law as they were conceded one person in the eyes of law. The wife was,
however, allowed to maintain an action in tort against her husband in respect of
her own property. But the old rule which resulted in serious anomalies and
injustices has now been abolished by the Law Reform (Husband and Wife) Act,
1962. Each of the parties to a marriage now has the same right of action in tort
against the other as if they were not married. However, in order to
prevent litigation for trivial domestic disputes, the Act provides that the court
may stay the proceedings if it appears that no substantial benefit will accrue to
either party from their continuation. 1 The proceeding may also be stayed if it
appears to the court that the case can be more conveniently disposed of under
section 17 of the Married Women's property Act, 1882, which provides a
 summary procedure for determining questions of title or possession of property
between husband and wife.

Indian Law is different on this point. Section 7 of the Married Women's Property
Act, 1874 provides:

"A married woman may maintain a suit in her own name for the recovery
of property of any description which by force of the said Indian
Succession Act, 1865, or of this Act, is her separate property, and she
shall have, in her own name the same remedies, both civil and criminal,
against all persons, for the protection and security of such property, as if
she were unmarried, and she shall be liable to such suits, processes and
orders in respect of such property as she would be liable to if she were
unmarried."

In India the notion of the legal identity between husband and wife does not
apply. The provision of the aforesaid Act should be read in this context. It would
appear from the provisions of the Act that a wife can sue her husband in respect
of her separate property and, since they are not one person in the eyes of Law,
the husband can also sue her wife for torts to his property. The provisions of this
Act do not deal with the torts as to personal injuries by the husband against the
wife or viceversa. Such torts, therefore, will be governed by the personal laws of
those communities covered under the Act. As already stated, this Act does not
apply to Hindus, Sikhs or Muslims. Their personal laws also recognise civil action
against each other in respect of her/his separate property, but neither of the
spouse can sue the other for torts to person done by one to another.2 It, thus,
appears that both under the personal laws as well under the Act, the wife can
sue her husband for torts to her property and the husband has a corresponding
right against the wife for torts to his property, but neither of them can sue the
other for assault defamation, or other personal injury.

An important point, which needs mention here, is: can a wife maintain an action
against third party for the injuries committed by her husband? There is no case
law in India on this point. However, an important English case of Smith v.
Moss3 is a beautiful illustration on this point.

The facts briefly were that the wife was injured owing to the negligence of her
husband while he was driving the car as agent for his mother. In such cases the
wife cannot sue her husband because of the rule of English Common Law

_________________________________

1. Section 1(2)(a), See Mcleod v. Mcleod, (1953) 113 LJ (Cty. Ct.).

2. The Hindu law recognises a right to compensation only when there is pecuniary loss and not in other
cases like assault, false imprisonment, defamation, insult, adultery etc., which are only punishable and not

actionable wrong. The Muslim Law is also on similar lines. See, R.S. Iyer The Law of Torts, 6th Edn., p. 588.

3. (1940) 1 KB 424.

that both are considered one person in the eyes of law. 1 But it was held by the
court that she could hold his master vicariously liable on the ground that "others
may not hide behind the skirts of (marital) immunity." 2 Here the husband's
freedom from liability is based on an immunity which is personal to him.

Another case of Broom v. Morgan3 also deserves mention in this connection. This

case has given rise to a very important point of law, namely, whether an
employer is vicariously liable to the servant's wife for the tort of his servant.

The plaintiff and her husband were employed by the defendant. The husband
was employed as manager and the wife as his helper. Owing to the negligence of
the husband (i.e., the manager), the wife (i.e., the helper) sustained injuries.
She sued the employer for damages. In defence it was argued that since the
wife cannot maintain a suit in law of tort against her husband, it would also
immune the master in whose course of employment he was working. Rejecting
the contention of the defendant, the court followed the decision of Smith v.
Moss. Singleton, L.J., stated "The fact that a wife has no right of action against
her husband in respect of his tortious act and negligence does not mean in law
she has no right of action against her husband's employers if he, when he did
that negligent act, or made that negligent omission, was acting within the scope
of his employment. They remain liable, and there is no reason either in law or in
commonsense why they should be given an immunity which springs, in the case
of husband and wife, from the fiction that they are one and from the desire that
litigation between husband and wife shall not be encouraged".4

Thus, in India although the wife cannot sue her husband for personal injuries on
the basis of personal laws of different communities, but she can sue her
husband's employer if husband has committed a tort against her during the
course of employment. It follows that on the basis of parity, a husband may also
recover against her employer if she has committed a tort against her husband
during the course of her employment.5

But whether a husband can be held liable for the tort of his wife committed
against another? On principle he ought to be liable if she is acting as his agent
or servant under the rule of vicarious liability. But where she commits a tort
neither as an agent nor as a servant of her husband, he will not be held liable
because she may be sued as a feme sole.6 The principle that she impliedly
carries on business as agent of her husband is excluded by the Married Women's
_______________________

1. See also Section 12 of the Married Women's Property Act, 1889. But, as already stated above, the old

rule of common law and the aforesaid act for the purpose of tortuous liability between husband and wife,

has now been abolished in England by the Law Reform (Husband and Wife) Act 1962.

2. It was also held in America in the case of Schubert v. Schubert Wagon Co., 249 NY 253 (1953).

3. 1 All ER 849 (1953).

4. Ibid., p. 859.

5. See also Winfield on Tort, 8th Edn., (1967), pp. 708771.

6. Section 7, Married Women's Property Act, 1874. Moreover in India husband and wife are not considered

as one person in the eyes of Law.

Property Act, 1874.1 The case of Simpson v. Bachman2 on this point deserves

mention here.

Mrs. Bachman had employed Mrs. Simpson (the wife of the applicant) as
housekeeper to manage the boarding house belonging to Mrs. Bachman. Mrs.
Simpson severed her connection with the boarding house after misappropriation
of money. It was held by the court that a husband is not liable for an act of
misappropriation of his wife simply because he allows her to take up service
during the course of which she commits misappropriation.

2.5. Bankrupt

A bankrupt or insolvent cannot sue for wrongs in respect of his property because
all his property vests in a Trustee in bankruptcy according to English law, or, the
Official Assignee or the Official Receiver in India.3 So in England as well as in
India, the right of action for tort or injury to property will vest in the Trustee,
Assignee or the Receiver for the benefit of the insolvent's creditors. He can,
however, sue for a wrong to his person or reputation.4

It may be pointed out that where a tort causes injury both to his person and
property, the right of action will be splitted. It will pass to the Trustee or Official
Assignee or the Official Receiver so far as it relates to the property, and so far as
it relates to his person, it will remain in the bankrupt.

2.6. Infant/Minors

A minor or an infant may sue for any wrong done to him. He can, of course, sue
by his next friend (usually father). But whether an infant can maintain an action
for injuries sustained enventresa mere (i.e., when he was in the mother's womb)
 is still unsettled. There is no English or Indian case law on the point. However,
this question was considered in an Irish case of Walker v. G.N. Rly.5

The facts were that a child was born crippled and deformed after an accident to
it enventresa mere owing to the company's negligence while the mother was
travelling on its line. The railway company was not held liable. The court gave
two reasons: first, the company owed no duty of care towards the child either in
contract because there was none with respect to the child, or, in tort because
the company did not know of the child's existence; secondly, the medical
evidence necessary to establish the claim was too uncertain. On the other hand
the Supreme Court of Canada granted a remedy in a similar case. 6 In U.S.A.
claims have been allowed in certain cases.7

In England, on the recommendation of Law Commission, the British Parliament

passed `Cogenital Disability (Civil Liability) Act' in 1976, whereby, an action for
the injury to unborn child has been permitted in certain cases. The Act

____________________________

1. See Allumudhy v. Braham, 1879 (4) Cal 142.

2. 1914 ALJR 55.

3. For example, Provincial Insolvency Act, (V of 1920) etc.

4. Rose v. Rucktt, (1901) 2 KP 449; Wilson v. United Counties Banks, 1920 AC 102 (120).

5. (1890) 28 LR Ir 69.

6. M. Trammayas Co. v. Leveille, 1933 SCR 456: 4 DLR 537.

7. See 1950 6 Harvard LR 173.

under section 1 provides that an action may lie against a person whose wrongful
act towards a pregnant woman results in a child being born disabled, abnormal
or unhealthy. Normally, no action will lie on behalf of a child when born, if the
person responsible for its disabilities is its mother. But an action for injury to the
child is permitted even against the mother in such cases if the harm to the child
is caused when she is guilty of negligent driving of a motor vehicle. Father of the
child will also be no exception in such kind of cases. An action even against the
father can be justified when he assaults his pregnant wife and thereby causes
injury to the unborn child. Not only that, the Act permits an action not only for
an injury to a child in the mother's womb, but also for wrongful acts even prior
to that. Section 1(2)(a) of the Act permits action for an injury which affected
either parent of the child in his or her ability to have a normal, healthy child.
However, damages for the loss of expectation of life of a child can be claimed,
 provided the child lives for at least 48 hours after his birth. 1 Another important
feature of the Act is that the liability towards the child can be excluded or
restricted by a contract made with the parent of such a child.2

In India there is no case law on the point. But rights of unborn child are
recognised in Hindu law. The child in the womb is entitled to a share in the
family property. Similarly, the rights of unborn child are also recognised in
property law. Trusts may be created for the benefit of unborn child. In criminal
law causing death to an unborn child, abortion and miscarriage are also made
penal offences under sections 316, 312 and 313 of the I.P.C. Keeping in mind
the aforesaid rights of an unborn child, it is suggested that the Indian Parliament
should also pass a law more or less on the lines of English Act of 1976. However,
it is submitted that there should be liability in such kinds of cases provided the
necessary elements of tort are made out.3

2.7. Corporation

A corporation is considered as a person in the eye of law and can sue for wrongs
to its property or business.4 It cannot sue for personal wrongs, for, by its very
nature, such injuries cannot be inflicted on a corporation e.g., assault and
personal defamation.5 Where, however, the libellous or slanderous words are
calculated to injure the reputation in ordation to its trade, a corporation may
sue.6 On the same reasoning, an idol in a Hindu temple is considered to have a
corporate existence and can sue through its manager for any tort to its
property.7 But an unincorporated association cannot sue for the libel and it
cannot sue after

___________________________

1. Section 4(4). This provision does appear to be justified. Such an action should be permitted once a child

is born alive irrespective of the minimum time of 48 hours.

2. Section 1(6). This creates an exception to the privity of contract theory, for, the child's right of action is

executed even though he himself does not make a contract to that effect.

3. See also Clerk & Lindsell Torts, 12th Edn. 88; Beven on Negligence, 4th Edn., p. 75; Salmond Torts, 18th

Edn., pp. 8182.

4. South Helton Co. v. North E. News Association, (1894) 1 QB 133.

5. Mayor of Manchester v. Williams, (1891) 1 QB 94.

6. D.S.L.C. Ltd. v. D. Ajon, (1945) 1 KB 364; S.H.C. Co. v. N.E.N.A., (1894) 1 QB 133.

7. Raja Promodanath Roy v. Purna Chandra, 35 Cal 691. In this case an idol in a Hindu was regarded as a
 legal person and could sue or be sued like a corporation.

incorporation for the injury alleged to be done to its members before it was
incorporated.

2.8. Foreign State

A foreign state cannot sue in any Indian courts unless such state has been
recognised by the Government of India.1

3. Who cannot be sued?

Now, we take a look at those persons who cannot be sued in tort.

3.1. Sovereign or King

In English law the immunity of the Crown from civil liability is based upon the
maxim, "The King can do no wrong". An action for a personal wrong will,
therefore, not lie against the Crown. The Crown Proceedings Act, 1947 which
changed the old law also preserves this rule that no proceedings can be brought
in tort against the Crown in a private capacity.2

In India, now there is no King. It has been provided in the Constitution of India
that the President of India and Governors shall not be answerable to any court
(i) for the exercise and performance of the powers and duties of their office, or
(ii) for any act done or purporting to be done by them in the exercise and
performance of those powers and duties.3 It has also been provided under
section 87B of the Civil Procedure Code, that no ruler of any former Indian State
may be sued in any court except with the permission of the Central Government.

We will consider the liability of the Government for the tortious acts of its
servants and agents under the Chapter `Vicarious Liability'.

3.2 Act of State

Act of State is an act done in exercise of sovereign power in relation to another

State or subjects of another State which cannot be questioned by municipal
courts4. Acts done by public officials on prior approval of the State may be an
Act of State. It only affects the foreign nationals living in a country. Acts done by
rulers in exercise of political power to the people of another State are Acts of
State and, therefore, they are exempted from liability. If any injury is caused to
a foreign national by an act done in exercise of its sovereign power he cannot
take any action against that officer or the State and he could only seek remedy
through diplomatic means. There can be no such thing as an Act of State
between a sovereign and his own subjects. They are governed by the general
 law of the country. The essentials of an Act of State are:

(i) The act is done by State's representative.

(ii) The act is injurious to other state or its subject.

(iii) Such acts are done either with the prior sanction or is subsequently
ratified by the State5.

_______________________

1. See section 84, CPC.

2. See section 40(1).

3. Article 361.

4. See also `Act of State' in Chapter 5.

5. Buron v. Denman, (1848) 2 Ex 167.

The law relating to Act of State is followed in India also. In Secretary of State in
Council of India v. Kamachau Boye Saheba 1 the Raja of Tanjore, was under the
protection of East India Company by virtue of treaties. The directors of the
company declared Tanjore to have been lapsed to the British Government on the
death of Raja who had died without a male issue. The widow filed a suit against
East India Company. The Privy Council held that it was an Act of state and for
such wrong no Municipal Court could award any remedy.

3.3. Foreign Sovereign and Ambassador

In English law, the courts have no jurisdiction over an independent foreign

sovereign, unless he submits to the jurisdiction of the court.2 Even if such a
sovereign is a British subject and has exercised his rights as such subject, he
cannot be answerable in any English courts for acts of state done by him in his
own territory, by virtue of his authority as a sovereign.3 A diplomatic agent or
ambassador and his family have the same protection.4

In India the above principles of English Law have been followed. Section 86 of
the Code of Civil Procedure provides that no ruler of a foreign State may be sued
in any court, other wise competent to try the suit, except with the permission of
the Central Government certified in writing by a Secretary to that Government.
Section 86 further provides that an ambassador or diplomatic agent and his
family have the same protection.

3.4. Infant/Minors
 An `infant' means in law a child who is below eighteen years of age in India. A
minor or infant is in general liable for his torts in the same manner and to the
same extent as an adult. But where knowledge, intention or malice is a
necessary ingredient in constituting a tort (e.g. deceit, technical assault etc.),
infancy is a good defence in case he (minor) has not attained sufficient maturity
of understanding. An Indian case of Swarup Kishore v. Goverdhandas 5 illustrates
this point.

The facts were that a minor of 16 years of age slapped the plaintiff on his face in
the presence of several persons. In defence it was argued that the defendant
being a minor cannot be held liable in damages. Rejecting the contention of the
defendant, Dixit. J., held that a minor is in general liable for his torts to the
same extent as an adult. The rule of exemption from liability for an act done by
a person below a certain age has no applicability in conduct tortious in itself and
in its very essence. "It is only in those cases where an act is innocent in itself
but become tortious by the addition of some ingredient such as intention,
malice, knowledge or state of mind in the person charged as a wrong doer that
the age and mental capacity of the defendant becomes relevant."

_____________________

1. 7 MIA 476.

2. Mighell v. Sultan of Johore, (1894) 1 QB 149; Duff Development Co. v. Kelanatan Govt., 1924 AC 797;

De Haber v. Queen of Portugal, (1851) 17 QB 171.

3. Duke of Brunswick v. King of Hanover, (1848) 2 RLC 1.

4. The Diplomatic Privileges Act, 1708 (7 Anne. C.12); See also M.S.N. Co., Martime, (1859) 2 E&E 94.

5. AIR 1956 MB 84.

Again an action against an infant will not lie if it is nominally in tort but in
substance it is in contract. The case of Jennings v. Rundell1 illustrates this point.

The defendant, an infant, hired a mare and killed it by over riding. The plaintiff
sued the defendant in tort. It was held by the court that this was in substance
an action for breach of contract and could not be altered by the mere allegation
that the defendant acted wrongfully or maliciously.

But where it is proved that the defendant (minor) had committed a wrong
independent of contract, he would be liable. It was so held in the case of
Burnard v. Haggis2where the defendant, a minor, hired a horse of the plaintiff
for riding on the condition that it was not to be used for jumping. He lent it to a
friend and got another horse for himself. Both of them, then set out across fields
 and fences and the plaintiff's horse when made to jump over a high fence was
impaled on it and killed. The court held the defendant liable on the ground that
there was tort wholly independent of contract. The act of the infant was a bare
trespass, not within the condition of hiring.

It may also be pointed out that an action in tort would not be allowed if it would
defeat the rule against suing a minor in contract. Dhanmull v. Ramchander
Ghosh3illustrates this point.

The facts were that an infant obtained a loan upon the representation (which he
knew to be false) that he was of age. It was held by the court that no suit to
recover the money could be maintained against him, there being no obligation
binding upon the infant. Similarly in Stocks v. Wilson 4 it was held that an action
against the infant for conversion cannot be brought for the value of goods
wrongfully obtained. However, he is under an equitable obligation to restore any
specific goods or possession of premises obtained under an invalid contract. 5 In
Jennings v. Rundall,6 it was stated by the court that an infant will not be allowed
to take advantage of his own fraud. The protection given to him was to be used
as a shield and not a sword. It is, however, to be noted that if there is no
contract, he can be compelled to refund money or property obtained by fraud or
embezzlement, Bristow v. Eastman.7

3.5. Lunatic

Lunatics have the same rules of liability as infants. Insanity by itself is not a
defence in tort.8 But, if a particular tort requires a particular state of mind, for
instance, malice or some specific intent, then insanity may be a good defence to
disprove the existence of such malice or intent. Similarly, if the action of the
defendant is not a voluntary act, but the act of an automation, like the act of a

___________________________

1. (1799) 8 TR 355.

2. (1863) 14 CBNS 45; See also Walley v. Malt, (1876) 35 LT 631.

3. LLR 1890 XXIV Cal 265 (270).

4. (1913) 2 KB 235.

5. Lempress v. Lange, (1879) 12 Ch D 676.

6. (1799) 8 TR 355.

7. (1794) 1 Esp 172.

8. See for a detailed discussion: Halsbury's Laws, 3rd Edn., Vol. 37, p. 134; Fleming on the Law of Torts,

1957 Edn., p. 27; Pollock's Law of Torts, 15th Edn., p. 48; Salmond on the Law of Torts, 15th Edn., p. 583.

fever patient in his delirium or a somnambulist in his sleep or of an epileptic in

his paroxysm, then, for such an act, the defendant is not liable.1 Again, if the
insanity of the defendant is of so extreme a type as to preclude any genuine
intention to do the act complained of, there is no liability on the defendant since
there is no voluntary act on his part.2 Whether the insanity is or is not of that
degree is a question which has to be decided in each case depending upon the
facts and circumstances of the case. If the defendant knew the nature and
quality of his act, it is no defence that he did not know that what he was doing
was wrong.3 It may also be pointed out that in wrongs dependant upon
negligence, the conduct of the defendant must be judged by reference to his
knowledge or means of knowledge: and in such cases, insanity may be relevant
as an evidence that the necessary knowledge or means of knowledge did not
exist. An important and the only Indian case of Ranganagulu v.
Mullackal4 decided by the Kerala High Court deserves mention here.

In this case the facts were that the appellant (Ranganagulu) was a Hindu
belonging to Remnad District, and he used to come to Alleppey often. During
such visits, he used to go to the Mullackal temple and worshipped there. Once
he entered the temple, wearing shirt and shoes and broke the idol of the deity;
and he was caught and handed over to the police. From his behaviour, the police
suspected that he must have been insane; and they handed him over to the
nearest doctor. The doctor kept him under observation and issued a medical
certificate stating "indifferent to the surroundings. Does not sleep at night. Talks
incoherently. Laughs without any reason." From this doctor came to the
conclusion that he was insane. When the doctor was cross-examined on these
points to bring out whether any one of these conditions could by itself indicate
mental derangement, he admitted that none of these conditions by itself would
be sufficient to hold that the person was insane. But he stated that considering
all those circumstances together, he came to the conclusion that the appellant
was insane. It was stated by the court that this "evidence is not sufficient to hold
that the appellant was not in a position to know the nature and quality of his
act; nor can it be stated from this evidence that the appellant's acts were
involuntary". Holding the defendant liable, the court stated that "much
importance should not be attached to the medical certificate, at any rate, it is
not possible to hold that the appellant was incapable of understanding the
nature and quality of his act; obviously, the appellant's act in breaking the idol
was not an involuntary act either-the act of an automation. Even if he was under
the impression that he had the right to enter the sanctum sanatorium of the
temple or he was not aware of the consequences of his act, still, if he knew the
nature of his act and if the act was not an involuntary act, he is liable for the act
 if the act is tortious.It would thus appear that where a person committed
tortious act involuntarily while he was not in position to know the nature of the
act, insanity of the person can be held to be of that degree which would absolve
him form the liability for his act.

_____________________

1. Williams v. Williams, 1964 AC 698.

2. Morris v. Marsden, (1952) 1 All ER 925.

3. See Tindale v. Tindales, (1950) 4 DLR 363 (Can); See also (1952) 1 All ER 925.

4. MANU/KE/0009/1974 : AIR 1974 Ker 25. (Vol. 61, C. 9).

3.6. Drunkard

Drunkenness is not a good defence in the law of tort. Every person is presumed
to know the consequences of his act. Therefore, it is to be presumed that a man
knows that if he gets drunk he is likely to commit acts which will cause injuries
to others. But, if the intoxicant is administered against his will, or by fraud, or by
mistake, the rule is otherwise and he may not be liable in tort if he is unable to
understand what is right or wrong.

3.7. Corporation

A corporation, being a person in the eyes of law, is liable vicariously for the torts
of its agents or servants acting in the course of their employment. It may thus
be liable for tort like false imprisonment, conversion, libel, trespass or
negligence.1 In T. Pillai v. Municipal Council2 the plaintiff's pet and harmless dog
was killed by a municipal employee in the course of his duty of killing stray dogs
in the municipal town. Holding the defendant liable, it was observed by the court
that "the corporation is a fictitious and legal person having an entity in law
distinct from its members and by its very nature can only act through its
servants or agents, and not in propria persona. A corporation is as much liable in
an action on tort as an individual.

The court further observed that "whatever difference of opinion there may be on
the question of legal doctrine as to how far an agent or servant of a corporation
can be said to act within the scope of his employment in respect of a tort which
is ultra vires the corporation, there is consensus of authority for holding that a
corporation cannot be immune from liability in respect of tort brought about at
its instance on the ground that the act was not intra vires the corporation."

It has been observed (regarding ultra vires torts of a company) that the rule of
constructive notice of memorandum and articles explains why a company is not
 liable for an ultra vires contract, but that does not solve the problem of injustice
involved. Moreover, the rule altogether fails to hold ground when company is
sought to be made liable for a tort committed by a servant of the company while
acting beyond its powers. Any one dealing with a company may, at the pain of
losing the bargain, be required to acquaint himself with the company's
memorandum. But that can hardly be expected of a person who has been the
victim of an ultra vires tort. For example, a company is operating omnibuses, a
venture entirely alien to its objects, as described in the memorandum. The
driver of one such bus negligently injures the plaintiff who sues the company for
the tort. It can, no doubt, be contended against him that the driver was not a
servant of the company.3 The company, having existence outside its corporate
sphere, could not have appointed him.4 But can it be said that the plaintiff ought
to have known this fact. Doubtless the plaintiff deserves to be

_____________________

1. M.D. Trustees v. Gibbs, (186465) LR 14 L 93; See also Indian cases Mohan Lal v. Municipality, (938) XL

Bom LR 553; Distt. Board v. S. Nivas, 1942 ALJR 619; V.M. Vadi v. Municipality, AIR 435 AP.

2. MANU/TN/0204/1961 : AIR 1961 Mad 230.

3. See 24 Harv LR 534.

4. See E.H. Wanes: Executory Ultra Vires Transactions (191011), 24 Harv LR 387.

compensated. But the law has not yet clearly declared the justice of his
demand.1 As the law seems to stand at present, to make a company liable for
any tort it must be shown that:

1. the activity in the course of which it has been committed falls within
the scope of the memorandum, and

2. that the servant committed the tort within the course of his
employment.

3.8. Trade Union

Section 13 of the Indian Trade Unions Act, 1926 provides that a registered trade
union shall be a body corporate by the name under which it is registered and
shall sue and be sued under that name. Where, however, a trade union is not
registered, it has been provided under Order 1, rule 8 of the Code of Civil
Procedure, 1908 that any one or more of its members may be sued as
representing the Trade Union. A registered trade union and its officers and
members have been exempted from liability in respect of certain torts. Section
18 of the aforesaid Act of 1926 provides that no suit shall lie against them or
 any of them in respect of any act done in contemplation or furtherance of a
trade dispute to which a member of the Trade Union was a party on the ground
that such act induces some other person to break a contract of employment, or
that it is in interference with the trade, business or employment of some other
person or with the right of some other person to dispose of his capital or labour
as he wills. However, if the strike is illegal under the Industrial Disputes Act,
1974, a trade union (registered) or its officers will be held liable.

3.9. Married Woman

A Married woman to whom the Married Women's Property Act, 1874, applies
may sue or be sued in tort just as a feme sole. The damages recovered by her
become her separate property, and any damages recovered against her are
payable out of her separate property. This Act does not apply to Hindus,
Buddhists, Jains, Muslims and Sikhs. Even under their personal laws, a wife is
considered as a separate person from the husband, and she can sue or be sued
in respect of a tort committed against or by her. It is neither necessary nor
proper that the husband should be joined as a party to the suits. Husband is not
liable for the torts committed by his wife in her individual capacity. In England,
however, if the wife committed a tort, there could be an action against both
husband and wife because the wife could not be sued alone. Thus, a husband
was held liable for the torts of his wife committed after marriage. 2 But, now the
Law Reform (Married Women and Tortfeasors) Act, 1935 has changed the
position and the husband is now not liable for any tort of his wife. If husband
and wife are joint tortfeasors then they can be held liable jointly.

_______________________

1. See Liability of Corporations for the Torts of their Servants, 10 Camb LJ. Poultion v. London S.W. Rly.

Co., (1867) 2 QBD 534; A.L. Goodhart Corporation Liability in Tort and the Doctrine of Ultra Vires, 25 Camb

LJ. Also see 29 Harv LR 404.

2. Edwards v. Porter, 1925 AC 1.

 
 

 
 

 
  

© Universal law Publishing Co.

   

CHAPTER 8

JOINT-TORTFEASORS

SYNOPSIS

1. Independent Tortfeasors & Joint-Tortfeasors

2. Joint-Tortfeasors

3. Liability of Independent Tortfeasors

4. Liability of Joint-Tortfeasors

5. Law in India

1. Independent Tortfeasors & Joint-Tortfeasors

Where the same damage is caused to one person by several wrongdoers. They may be
either independent tortfeasors or joint-tortfeasors. It is therefore necessary to
distinguish the two types of tortfeasors and their liability.

Independent tortfeasors are persons who cause the same damage by independent
wrongful acts; whereas joint-tortfeasors are those persons who cause the same damage
in furtherance of a common design. In other words, persons cannot be joint-tortfeasors
unless they have mentally combined together for the same purpose. The difference
between the independent and joint-tortfeasors was explained by the court of Appeal in
the case of The Koursk,1 thus: "Persons are said to be joint-tortfeasors when their
respective shares in the commission of the tort are done in furtherance of a common
design but mere similarity of design on the part of independent actors causing
independent damage is not enough, there must be concerted action to common end.2"
In Machindranath Kernath Kasar v. D.S. Mylarappa,3 the damage is caused by
negligence on the part of the driver of offending vehicle. The Apex Court held that when
a damage is caused upon act of negligence on the part of a person, the said person is
primarily held to be liable for payment of damages. The owner of the vehicle would be
liable as he was permitted the use thereof. To that effect only under the Motor Vehicles
Act, both driver and owner would be jointly liable. This, however, would not mean that
they are joint-tortfeasers in the strict sense of the term. For example, if two motorists A
and B with the object of getting in front of a car driven by C, drive their respective cars
in such a rash and negligent manner that their cars collide against the car of C and
cause injury to C, both A and B will be considered as joint-tortfeasors and responsible
for the

___________________________

1. Law Reports (1924) Probate Div 140.

2. The other cases are, Thompson v. London County Council, (1899) 1 QB 840, discussed infra; Sadlar v.

G.W. Rly., 1896 AC 450.

3. MANU/SC/2484/2008 : AIR 2008 SC 2545.

injury to C. However, if A and B had no such concerted plan and were merely
driving their cars on the public road and a collision occurs on account of their
negligence causing injuries to C they will be considered independent tortfeasors.

2. Joint-Tortfeasors

The liability of joint tortfeasors arises under three circumstances:

(a) Agency—When one person is authorized by another person to act on his

behalf, then for any tort committed by such person, the principal as well as
agent both are jointly and individually responsible. Thus, when agent commits a
tort in the course of his agency, both principal and agent are treated as joint
tortfeasors1, or, if a partner commits a tort in the course of business of the firm,
all other partners are treated as joint tortfeasors.

(b) Vicarious liability—When a person is liable for the tort committed by other

person under special relationship the liability is joint and both are tortfeasors.
Thus, when a servant commits a tort in the course of employment the master
can be made liable alongwith the servant as joint-tortfeasors2.

(c) Joint or common action—When two or more persons join together for

common action then all the persons are jointly and severally liable for any tort
committed in the course of such action. It is here we are concerned with such
type of joint-tortfeasors whose liability has been discussed in this chapter.

3. Liability of Independent Tortfeasors

So far as independent tortfeasors are concerned, they are severally liable for the same
damage due to independent causes of action. The best illustration on this point is the
case of Thompson v. London County Council3 where the plaintiff's house was damaged
due to subsidence caused by excavation negligently by A and also due to the negligence
of B in leaving a watermain insufficiently stopped. It was held by the Court of Appeal
that A and B were not joint-tortfeasors (since their acts were independent) and could
not be joined in one action. It was observed, "the damage is one but the causes of
action which led to that damage are two." Such tortfeasors are, therefore, severally
liable for the same damage, not jointly liable for the same tort.

Another important case is of Koursk4, where two ships—Koursk and Clanchisholm,

collided with one another. As a direct collision, the ship Clanchisholm ran into and sank
another ship Itria. The owners of the damaged ship `Itria' recovered damages against
Clanchisholm, but were not able to get full satisfaction because the owners of
Clanchisholm had their liability limited to a lesser amount. Subsequently, the owners of
Itria filed a suit against the owners of the Koursk also. It was held that they
Clanchishoim and Koursk, were not joint tortfeasors but only independent tortfeasors.
The liability of the independent tortfeasors was held to be `several' and not `joint' and,
therefore, there could be as many causes of action' as the number of tortfeasors. It was
further held by the court that the judgment against the Clanchisholm did not bar the
action against Koursk.

_____________________________

1. See also `Principal and Agent' in Chapter 17.

2. See also `Master and Servant' in Chapter 17.

3. (1899) 1 QB 840.

4. Law Reports (1924) Probate Div 140.

4. Liability of Joint-Tortfeasors

There were three principles in English Common Law with regard to the liability of joint-
tortfeasors. The first principle is that the liability of wrongdoers are joint and several i.e.
each is liable for the whole damage. The injured party may sue them jointly or any one
of them separately and the decree obtained against them jointly may be executed
against any one of them (Arneil v. Peterson)1. The second rule was laid down in the case
of Brinsmead v. Harrison,2 where it was held that a judgment obtained against one joint
wrongdoer released all the others even though it was not satisfied. The tort is said to
have merged in the judgment. The third rule was laid down in the case of Merryweather
v. Nixon,3 where it was held that a tortfeasor liable in damage for his fraud or wilful
wrongdoing could not recover contribution or indemnity from a joint tortfeasors.

Both the above rules were virtually abolished by the Law Reform (Married Women and
Tortfeasors) Act, 1935 and the Civil Liability (Contribution) Act, 1978. The first rule in
Brinsmead case, being unjust, has been abolished by the Act of 19354 and thereafter by
the Act of 1978 which now provides (as per section 3) that judgment recovered against
any person liable in respect of any debt or damage shall not be a bar to an action, or to
the continuance of an action, against an other person who is (apart from such bar)
jointly liable with him in respect of the same debt or damage. The second rule in
Merryweather that a tortfeasor who has been held liable cannot recover contribution
from other joint tortfeasors, being unjust, has also been abolished by the Act of 1935
which, as per section 6(1), provides that a tortfeasor who has been held liable to pay
more than the share of damages, can claim contribution from the other joint
tortfeasors. But5

_______________________________

1. 1913 AC 560—In this case two dogs belonging to two different persons X and Y, attacked a flock of

sheep in a concert and injured many of the sheep. When the owners were sued for damages, one of them

claimed that he was responsible for only half of the damage. It was held that each of the dog occasioned

whole of the damage as both the dogs acted together and therefore it flows that each owner is responsible

for whole damage.

2. In this case Brinsmead sued Harrison for recovery of Piano. Harrison's defence was that Brinsmead had

already recovered judgment against his joint-tortfeasor. Brinsmead contended that he could not realise the

amount from the tortfeasor & therefore was entitled to bring subsequent action against the other joint

tortfeasor, Harrison. Blackburn, J. held that this will not be permitted. (1871) 2 R 7 CP 547.

3. In this case X and Y jointly damaged the machinery in Starkey's mill. Starkey sued them jointly and got

judgment for £ 840 and executed against X for the whole amount. X sued Y for contribution of £ 420. Lord

Kenyon dismissed the suit and held that he cannot obtain contribution from his joint-tortfeasors, Y. (1799)

TR 88.

4. Section 6(1)(a) The Law Reform (Married Women and Tortfeasor) Act, 1935 provides that an action

against one or some of the joint tortfeasors is no bar to an action against other tortfeasors, who would

have been also be liable for the same damage.

5. Section 6(1), Law Reforms (Married Women and Tortfeasors) Act, 1935 provides: "Where damage is

suffered by any person as a result of a tort (whether a crime or not)—any tortfeasors liable in respect to

that damage may recover contribution form any other tortfeasor who is, or would, if sued, have been liable

in respect to the same damage, whether as joint-tortfeasors or otherwise, so, however, that no person shall

be entitled to recover contribution under this section from any person entitled to be indemnified by him in

respect of the liability in respect of which the contribution is sought."

the amount of contribution recoverable from the joint tortfeasors will depend upon his
responsibility for the damage.1

The third unjust rule was created by section 6(1)(b) of the Law Reform Act of 1935 that
if successive actions are brought, the amount of damages recoverable shall not, in the
aggregate, exceed, the amount of damages awarded in the first judgment. This rule,
being unjust, has now been repealed and replaced by section 4 of the Civil Liability
(Contribution) Act, 1978 which now disallows only recovery of cost in the subsequent
suits, unless the court is of the opinion that there was reasonable ground for bringing
the action.2

5. Law in India

In India there is no statutory law on Joint Tortfeasors' liability. As stated above, in

England the Law Reform (Married Women and Tortfeasors) Act, 1935 and the Civil
Liability (Contribution) Act, 1978, have virtually brought the position of joint-tortfeasors
on par with the independent tortfeasors. The question, therefore, arises should the
Indian courts follow the common law on joint-tortfeasors which was laid down in
Brinsmead3 and Merryweather4 cases and was prevailing in England prior to 1935 or the
law enacted by the British Parliament in 1935 and 1978. Upto 1942, the Courts in India
had followed the law as laid down in Brinsmead and Merryweather cases, 5 but in some
cases the courts expressed doubts about its applicability in India.6 However, starting
from 1942 the courts in India have generally 7 expressed that the law laid down in
Brinsmead and Merryweather cases is unjust and not in consonance with the principles
of equity, justice and good conscience and, therefore, refused to follow that law in
India. Not only that, the courts have also not followed the statutory

_________________________

1. Section 6(2), Law Reforms (Married Women and Tortfeasor) Act, 1935 provides. "….the amount of the

contribution recoverable from any person shall be such as may be found by the court to be just and

equitable having regard to the extent of that person's responsibility.

2. Section 4, Civil Liability (Contribution) Act, 1978, provides: "Judgment recoverable against any person

liable in respect of any debt or damage shall not be a bar to an action, or to the continuance of an action,

against any other person who is (apart from such bar) jointly liable with him in respect of the same debt or

damage." Section 2(1) provides that in any proceedings for contribution ... the amount of contribution

recoverable from any person shall be such as may be found by the court to be just and equitable having

regard to the extent of that person's responsibility for the damage in question. Section 2(2) provides: that

the courts shall have power in any such proceedings to exempt any person from liability to make any

contribution or to direct that the contribution to be recovered from any person shall amount to a complete

indemnity". However if there is a limit to the amount of contribution fixed by the parties themselves, then

the maximum amount of contribution will be the amount so limited or reduced by parties.

3. (1871) 2 R 7 CP 547 discussed above.

4. Discussed above.

5. Harnath v. Haree Singh, (1872) 4 NWP 116; Mahabir Bd. v. Darbhangi Thakur, (1919) 4 PLJ 486; Prabhu
 Dayal v. Dwarka Prasad, (1931) 54 All 371.

6. Shiva Panda v. Justi Panda, (1901) 25 Mad 599; Nihal Singh v. Collector of Bulandshahr, (1916) 38 All

237; Seho Ram v. Karan Singh, (1924), 46 All 860; K.P. Sukul v. Y.M. Pramanik, (1927) 55 Cal 666;

Yegnarayana v. Y. Rao.

7. Except in the case of Vedachala v. Rangaragu, MANU/TN/0185/1960 : AIR 1960 Mad 457 where

common law (prior to 1935) was followed.

law of England wherever it was against the principles of equity, justice and good
conscience.

A beautiful illustration on this point is the case of Nawal Kishore v. Rameshwar, 1 where
Agarwal J., said, "….there is no statutory law of torts in this country. The courts of this
country act on the principle of equity, justice and good conscience in matters which are
not covered by statute and rely upon the principles established under the English law to
find out what the rule of Justice, equity and good conscience is. Any technical rule or
statutory law of England is not as such, considered to be based on the principle of
equity, justice and good conscience, unless it appears to be so to the judge deciding the
case. It appears to us that the rule of law indicated in Cl. 6(1)(b) of the Act (of 1935) is
not necessarily based on any principle of equity, justice and good conscience. There is
no justifiable reason why, in the subsequent suit, if more than one suit is brought for
damages against different persons, the plaintiff should be restricted to the amount
decreed against the joint-tortfeasor in his suit against the other joint-tortfeasor against
whom the cause of action is not only joint but joint and several."2

Similarly in Kushal Rao v. Babu Ram Ganapat Rao 3, the Chief Justice—Stone, while
discussing the liability of joint tortfeasors, said that the rule in Merryweather v. Nixon is
inconsistent with justice, equity and good conscience and should not be followed in
India. "The English rule that there is no right of contribution between joint-tortfeasors
should not be applied to Indian conditions where courts do not merely administer the
common law but decide in accordance with equity, justice and good conscience and
where it is very desirable to exercise the power to differentiate between the various
persons held jointly liable at the suit of the persons injured.4

Another worth mentioning case is that of Dharni Dhar v. Chandra Shekhar,5 where Wali
Ullah J, said; "I am quite clear in my mind that the rule laid down in the English case of
Merryweather v. Nixon has no application to cases arising now in this country. It cannot
be invoked as a rule of English common law on the ground of equity, justice and good
conscience for the simple reason that since 1935 it no longer remains part of the
English common law. The rule is devoid of equity that there should be an equality of
burden and benefit. Further, after a decree has been obtained against two or more
tortfeasors, which imposes a joint and several liability upon each one of the judgment-
debtor, if one of them is made to pay the entire amount of the decree, justice and fair
play obviously require that he should be able to share the burden with his compeers
i.e., the other judgment-debtors. In enforcing a right to contribution such a judgment

__________________________

1. MANU/UP/0170/1955 : AIR 1955 All 585.

2. Ibid., p. 594.

3. MANU/NA/0039/1941 : AIR 1942 Nag 52.

4. MANU/NA/0039/1941 : AIR 1942 Nag 52. But in 1932 in the case of Mantrala Yegnanarayana v.

Jagannathe Rao, MANU/TN/0163/1931 : AIR 1932 Mad 1, the Madras High Court had accepted the

rule of Merryweather v. Nixon, and held that a person could not claim contribution for money paid by him

for satisfying a decree passed against him.

5. MANU/UP/0050/1951 : AIR 1951 All 774.

debtor bases his claim in reality on the fact that the common burden has been
discharged by him alone.1 The decree itself creates a joint debt and, therefore, each one
of the judgment debtors must, on principle, share the burden. "It seems to me,
therefore, clear that neither on principle nor on authority, the rule in Merryweather v.
Nixon is fit to be recognised and followed in India.2

The Supreme Court of India, in Khushro S. Gandhi v. Guzdar,3 refused to follow the

common law of England. The fact were that in the suit for damages for defamation, one
of the defendants had tendered apology to the plaintiff and the court had passed a
compromise decree between the plaintiff and the defendants who tendered apology.
When the plaintiff wanted to continue the suit against the other defendants, it was
contended by the defendants that the compromise decree released all the other
defendants from their liability. Rejecting the contention of the defendants, the Court
held that in the case of joint-tortfeasors, in order to release all the joint-tortfeasors, the
plaintiff must receive full satisfaction or which the law must consider as such from a
tortfeasor, before other joint-tortfeasors can rely on accord and satisfaction. The rule
which is in consonance with equity, justice and good conscience will recognise only that
type of liability of tortfeasors as joint and several. What is full satisfaction, depends on
the facts and circumstances of each case.

In the light of above decisions, the recent trend of the Indian courts is to follow or adopt
common law of England or the law enacted by British Parliament if it is in consonance
with the principles of equity, justice & Good conscience under Indian conditions.

______________________________

1. AIR 1951 All 791.

2. Ibid., p. 792.

3. MANU/SC/0169/1968 : AIR 1970 SC 1468.

 
 

 
  

© Universal law Publishing Co.

   

CHAPTER 9

TRESPASS TO PERSON

SYNOPSIS

1. Introduction

2. Assault

3. Battery

4. Defences against Assault or Battery

5. Distinction between Assault & Battery

6. Mayhem (Maim)

7. False Imprisonment

7.1. Total restraint

7.2. Knowledge of plaintiff

7.3. False imprisonment by the defendant

 7.4. Partial restraint

7.5. Means of escape

7.6. Detention without lawful justification

8. Defences

8.1. Reasonable condition

8.2. Judicial authority

8.3. Arrest by Police

8.4. Arrest on complaint before a Judicial Officer

9. Remedies

1. Introduction

Wrongs affecting personal safety and freedom are often termed as "trespass to person".
Trespass to person, as a matter of history, might be committed negligently as well as
intentionally, and this is still true today. In view of recent developments, however, the
availability of trespass to the person in a case of negligent injury is of little more than
academic interest.1 We shall, therefore, confine our attention in this chapter to
intentional trespass to the person, of which there are four forms namely, assault,
battery, mayhem and false imprisonment.

________________________________

1. See, Winfield, op. cit., pp. 7679; See also Letang v. Cooper, (1965) 1 QB 232 (CA); Fowler v. Lanning,

(1959) 1 QB 426—Intention is necessary in Trespass to person.

2. Assault

Assault may be defined as an unlawful attempt to do a bodily hurt to another, coupled

with present ability and intention to do the act. The essence of the tort of assault is
"putting a man in present fear of violence". A beautiful illustration on this point is the
leading case of Stephens v. Myers.1

The facts briefly were that the plaintiff was the chairman of a parish meeting. The
defendant having been very vociferous, a motion was made and carried by a large
majority that he should be turned out. Upon this the defendant said that he would
rather pull the chairman out of the chair than be turned out of the room. Immediately
he advanced with fist clinched towards the plaintiff, but was stopped by the church
warden who sat next to the plaintiff. Holding him liable for assault, Tindal, C.J.
remarked:

"It is not every threat, when there is no actual personal violence, that
constitutes an assault. There must in all cases, be the means of carrying the
threat into effect. The question I shall leave to you will be whether the
defendant was advancing at the time in a threatening attitude, to strike the
chairman, so that his blow would almost immediately have reached to the
chairman, if he had not been stopped; then though he was not near enough, at
the time to have struck him, yet if he was advancing with that intent. I think it
amounts to an assault in law. If he was so advancing, that, within a second or
two he would have reached the plaintiff, it seems to me it is an assault in law."

It has been seen that immediate intention to carry out his threat into effect is the most
important factor. Physical touching or impact is not needed in the case of assault. The
thing which is needed is that there must be reasonable apprehension of immediate
injury or violence to the plaintiff. Thus, a conditional threat is no assault nor is a mere
verbal threat unless there is an immediate intention and a present ability to do the act.
An Indian case worth mentioning on this point is of Bavisetti Venkata Surya Rao v.
Nandipati Muthayya.2

The plaintiff, a rich agriculturist, was in arrear of land revenue amounting to Rs. 11.60.
The village Munsif went to his residence to collect the land revenue. On demand the
plaintiff pleaded his inability to pay3. He then told the plaintiff that his ear-rings would
be destrained for default in the payment of land revenue, and called a goldsmith to take
out plaintiff's ear rings. On arrival of goldsmith, another person, who was standing
there, paid off the amount of arrears of the plaintiff to the village Munsif. The Court held
that it was not the case of assault since, after arrival of goldsmith, the defendant said
nothing and did nothing and that the threat of use of force by the goldsmith to the
plaintiff was too remote a possibility to have put the plaintiff in fear of immediate or
instant violence.

__________________________

1. (1830) 4 C&P 349.

2. AIR 38 AP.

3. 30 Cal 97.

The other case is of Birbal Khalifa1, where the accused was registered as a bad
character. A subinspector paid him a domiciliary visit in order to ascertain if he was at
home. After calling him out, he wished to take an impression of his thumb. The accused
objected to it and instead of extending his hand, he went inside the house and brought
a lathi and said that he would break the head of any one who asked for his thumb
impression. It was held by the Court that the threat being conditional did not amount to
an assault.

Similarly, where the defendant laid his hand upon his sword and said, "if it were not
assizetime, I would not take such language from you"2, or where the plaintiff has no
reasonable belief that the defendant has present ability to effect his purpose, as for
example, where X, who is in a train moving out of a station, shakes his fist at B who is
on the platform.3 All these acts do not amount to assault since there is no immediate
intention of the defendant to carry out the threat and nor there is reasonable
apprehension of violence to the plaintiff at the moment.

Pointing a loaded pistol or gun at a person is an assault, But what would be the case if
the pistol is unloaded? The only case on this question is of Blake v. Barnard,4 where
Lord Abinger held that "if the pistol was not loaded it would be no assault". But it is
submitted that this decision is not intellectually satisfying either on principle or
commonsense. Actually, assault involves reasonable apprehension of impact of
something on one's body, and that is exactly what occurs when a firearm is pointed at
one by an offender. It, therefore, ought to be an assault whether it is loaded or
unloaded, unless the person at whom it is pointed knows it to be unloaded, or unless his
distance from the weapon was so great that any reasonable and prudent person would
have believed that he was out of range.

From the above cases it appears necessary that the plaintiff, in order to succeed in an
action for assault, must prove that (a) there was some gesture or preparation, which
constituted a threat or force; (b) the gesture or preparation was such as to cause a
reasonable apprehension of force; and (C) there was a present ostensible ability on the
defendant's part to carry out a threat into execution immediately.

3. Battery

Assault becomes battery when there is a least touching either directly or

indirectly.5 Battery may, therefore be defined as intentional application of force against
another without lawful justification. In other words, it is the actual application of force
against another, done without lawful justifications, in a rude,

______________________________

1. Tuberville v. Satadge, (1969) 1 Mad 2.

2. Tuberville v. Satadge, (1669) 1 Mad 2; See also Bavisetti Venkata Surya Rao v. Nandipati Muthayya, AIR

38 AP.

3. Winfield, op. cit., p. 31.

4. (1880) 9 C&P 620; see also R. v. S. George, 9 C&P 433; Bavisetti Venkata Surya Rao v. Nandipati

Muthayya, AIR 38 AP.

 5. It is also an offence under section 350 of the IPC.

angry, insolent or revengeful manner. Physical hurt is not necessary. The least touching
of another in anger is a battery1. The case of Hurst v. Pictures Theatre Ltd.,2 may be
mentioned here.

The plaintiff purchased a ticket for a seat at a cinema show. While he was sitting in the
hall he was forcibly turned out of his seat on the direction of the manager, who was
acting under a mistaken belief that the plaintiff had not paid for his seat. On a suit by
the plaintiff it was held that the defendant committed a battery and was liable to pay
damages.

Thus to constitute a battery two thing are essential i.e., (a) hostile intent and (b) use of
force.

(a) Hostile intent.—For the tort of battery intention of the

defendant must be there. Thus, intentional touching of another in a
hostile manner or against his will is a battery. However, if the act is
done in automation3 (e.g., a violent attack by a somnambulist)
then it may not amount to a battery, but if the defendant knew the
nature and quality of the act it is not defence that by reason of
mental incapacity or lunacy he did not know what he was doing
was wrong.4 A decided case on this point is of Morris v. Marsden.5

The defendant while suffering from mental disease, attacked and

injured the plaintiff. At the material time he knew the nature and
quality of his act, but he did not know that what he was doing was
wrong. In an action for damages for the tort of battery it was held
that as the defendant knew the nature and quality of his tortuous
act, he was liable for damages for it even though he did not know
that what he was doing was wrong.

(b) Use of force.—The application of force against another person

without lawful justification is another necessary ingredient of
battery. The use of force may be of a very trivial nature, but there
must be physical touching. It need not necessarily be through
bodily contact. It may be through a stick bullet, firework or other
missiles. Even throwing water on a man or spitting in a man's face
has been held to be a battery.6 Probably flashing of light by torch
in another person's eyes is a battery. But it is doubtful whether
battery includes the flashing of light by a mirror in another person's
eyes. On principle it would amount to a battery, if the infliction of
 light (or other things like heat, gas or electricity) is applied in such
a degree as to cause injury or discomfort to the plaintiff.

On the other hand, if two or more persons meet in a narrow street, or in a bus or train
and without any violence or design of harm, the one touches the other gently, it will not
be a case of battery7 and it has been held that touching another in the course of
conversation or in order to draw his attention to

____________________________

1. Per Holt C.J. in Cole v. Turner, (1705) 6 Mod Rep 149.

2. (1915) 1 KB 1.

3. See, Ranganagulu v. Mullakal, MANU/KE/0009/1974 : AIR 1974 Ker 25; Williams v. Williams,

1964 AD 698.

4. Ibid.

5. (1952) 1 All ER 925.

6. R. v. Cottageworth, 6 Mod 172.

7. Cole v. Turner, (1705) 6 Mod Rep 149.

something is again no battery.1 However, if a person uses violence to force his way "in a
rude and inordinate manner" or if there is a struggle of such violence that actual harm
may be caused, then it is a case of battery.2

It is very pertinent to mention here that in a tort of Battery the force used must be
without lawful justification. If the force used is with lawful justification, then it would not
amount to a battery. An Indian case worth mentioning on this point is that of Pratap
Daji v. B.B. & C.L. Rly.3

In that case the plaintiff entered a carriage on the defendant's railway but forgot to
purchase a ticket for his travel. Soon after, at an intermediate station, he asked for a
ticket but the same was refused. At another place he was asked to get out of the
carriage. On his refusal, he was forcibly removed from the carriage. On an action for his
removal by force from the carriage, it was held by the court that the use of force was
justified as he, being without a ticket, was a trespasser. The defendants were,
therefore, not liable for the tort of battery.

But it may be noted that the force used against a trespasser must be reasonable i.e.,
neither unnecessary nor excessive. If it is either unnecessary or excessive, the
defendant will be liable. In Cherubin Gregory v. State of Bihar, 4 the defendants fixed
naked live electric wire, without any warning, across the passage of a latrine to keep
the trespassers away from the latrine. This caused the death of a trespasser. The Court
held the defendants liable as the force used was unreasonable or excessive.

P. Kader v. K.A. Alagarswami5, is another illustration where the Madras High Court held
that putting handcuffs to an undertrial prisoner and then chaining him like a dangerous
animal with a neighbouring window in a hospital during his medical treatment is an
unjustifiable use of force and the police officer responsible for the same is liable for
trespass to person. The court also observed that in such a case, these is no need to
prove any motive or intention on the part of the police officer, because if the officer has
exceeded and abused his authority, it may be out of arrogance or even because of a
temperamental defect which delights in cruelty, the act would be malicious and mala
fide unless it can plausibly be contended, that the circumstances justified the use of the
power.6

Does Battery include Assault?.—

Many authorities are of opinion that battery includes assault, 7 but it is not always true.
Fear or reasonable apprehension of force or harm on the part of plaintiff is a necessary
ingredient of assault. So whenever fear or reasonable apprehension of force or harm on
the part of the plaintiff results in battery, then assault is included in the battery. But

__________________________

1. Ashton v. Jennings, (1674) 2 Lev 133; Turbervell v. Savadge, (1669) 1 Mad 2; Coward v. Raddeley,

(1959) 4 H&N 478.

2. Cole v. Turner, supra.

3. 1875 (1) Bom 52.

4. AIR 1964 SC 203.

5. MANU/TN/0151/1965 : AIR 1965 Mad 438.

6. Ibid., p. 439.

7. Pollock Torts, 15th Edn., 167. Addision Torts, p. 158.

where battery is committed without fear or reasonable apprehension of force or harm

on the part of the plaintiff then battery does not include assault. For example, a blow
from behind inflicted by an unseen assailant. In such a case battery does not include
assault.

4. Defences against Assault and Battery

Most of the defences depend upon condition which is in general negative tortious
liability1. However some particular instances may be mentioned as follows:

(a) Expulsion of trespasser—When a person enters upon the property of another

with force without his permission and refuses to go out quietly, the owner is
permitted to use force as may be reasonably necessary but if the trespasser
enters quietly, the owner must request him to retire before using force. In such
a situation the force used is justified.

(b) Lawful correction—Assault or battery may be justified on the ground that it

was done in exercise of parental authority. Viz., for the correction of a pupil,
child, apprentice or a soldier. Her the corrective methods must not be excessive
or unreasonable.

(c) Retaking of Goods—When a person wrongfully takes the goods out of the
possession of rightful owner, the rightful owner or any other person authorized
on his behalf may first request the wrong-doer to deliver the property and if he
refuses, the owner or his authorized agent may use reasonable force as
necessary. In such situation the assault by the rightful owner is justified
provided no unnecessary violence is used2.

(d) Preservation of Public Peace—If any person disturbs a public meeting, a

lawful game or public worship, he may be lawfully removed. Here the force used
in removing that person is justified provided the force used is not more than
what is necessary

(e) Statutory Authority—Statutory authority may also be treated as a good

defence in the case of assault3. Thus, an assault may be justified on the ground
that it was done in serving legal process or searching any premise under any
law.

5. Distinction between Assault & Battery

The application of unlawful force to another constitutes the wrong called battery; an
action which puts another in instant fear of unlawful force, though no force be actually
applied, is the wrong called assault.4 Thus actual contact in assault is not needed;
whereas in battery it is needed. In battery physical contact is necessary; whereas in
assault mere fear or physical violence is enough. The following examples will illustrate
this point. To throw water at a person is an assault; if any drops fall upon him it is
battery.5 Pulling away

____________________________

1. See Chapter 5, supra.

2. Anthony v. Honey, (1832) 8 Bung 186; Blades v. Higgs, (1861) 10 CBNS 713.
 3. See also `Statutory Authority' in Chapter 5, supra.

4. Pollock Torts, 15th Edn., p. 159.

5. See, Winfield on Tort, 8th Edn., p. 28.

a chair, as a practical joke, from one who is about to sit on it is probably an assault until
he reaches the floor; when he comes in contact with the floor, it is a battery.

6. Mayhem (Maim)

Among the personal injuries not causing the death of an individual, the most serious is
what is known as "mayhem" or maim. In Hurst v. Pictures Theatres Ltd.1 where a man
was under a mistaken belief forcibly turned out from a cinema show, it was held by the
court that mayhem is a bodily injury which deprives a man of the use of any organ or
any sense which can be of use in fighting, or by the loss of which he is generally and
permanently weakened, but the bodily injury is not a mayhem merely because it is
disfigurement.

Mayhem is, therefore, another form of battery and includes all the ingredients of a
battery. The only difference between the two lies in the kind of injuries. If the bodily
injury is such whereby a person is weakened in fighting or in defending himself or to
annoy his adversary,2 then it as called mayhem. All other injuries, including least
touching, would amount to battery.

Thus, cutting off or disabling or weakening a man's hand or finger, or striking out his
eyes or foretooth, or castrating him, will be mayhem. But when there is no injury to a
fighting limb e.g., cutting of man's ear, nose, hair or back teeth, it will be a battery.

7. False Imprisonment

Both `false' and `imprisonment' are somewhat misleading terms. `False' does not
necessarily signify fallacious, but used in the less common sense of `wrongful' or
`unlawful'. Imprisonment, on the other hand, does not necessarily mean prison or jail.
It actually means `total restraint' or `total confinement' of a man's liberty whether it be
in the open field, or in the street or in a house. 3 And in all these places the party so
restrained is said to be a prisoner.4

False imprisonment, therefore, means wrongful total restraint of a man's liberty. In

other words, false imprisonment is committed when one person, without lawful
justification, intentionally imposes, for a time however short, total restraint upon the
liberty of another.

___________________________
 1. (1915) 1 KB 1.

2. 1 Hawks, RC 107 SI.

3. Coleridge, J. in Bird v. Jones, (1845) 7 QB 742 has very beautifully explained the term `imprisonment' in

this centext: "A prison may have its boundary large or narrow, visible and tangible, or, though real, stiff in

conception only; it may itself be movable or fixed; but a boundary it must have and that boundary the

party imprisoned must be prevented from passing, he must be prevented from leaving that place within the

ambit of which the party imprisoning would confine him, except by prison breach. Some confusion seem to

me to arise from confounding imprisonment of the body with mere loss of freedom; it is one part of the

definition of freedom to be able to go wither ever one pleases; but imprisonment is something more than

the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power

exterior to our own. Ibid., p. 744.

4. It is suggested that false imprisonment should be called as "wrongful confinement" or unlawful restraint.

But customary practice is more powerful than logic and, therefore, it remains the speaking term as a false

imprisonment in all the English speaking common law countries. In the Indian Penal Code it has been

correctly stated as "wrongful confinement" (See Sec. 350, IPC).

Thus, false imprisonment requires two essential elements which the plaintiff must
prove.1

(a) There must be a total restraint on the liberty of the plaintiff; and

(b) It must be without any lawful justification.

7.1. Total restraint

The tort of false imprisonment is committed only when there is total restraint on the
liberty of a person in moving into any direction and which is unlawful. This may be by
actual force or threat of force. For example, where a person is unlawfully closed in a
room for sometime; or where X goes on the rooftop and Y maliciously takes away the
ladder with the result that X, having no other alternative, has to remain there for
sometime; or where a person is prevented from leaving his house or ship,2 internment
of a person within an area; detention of a person in a public street against his will; 2 or
where a person unlawfully tells another that he is under arrest and the person follows
him to the police station.3

7.2. Knowledge of plaintiff

An important question arises: whether a plaintiff can sue for false imprisonment even if
he could not know at the time when he was imprisoned? It has been held in the cases of
Meering v. Graham White Aviation Co. Ltd.4 that the tort of false imprisonment can be
committed even if the plaintiff does not know that he is being detained.5

The facts were that the plaintiff was suspected of having stolen a keg of varnish from
the shop of his employers, the defendants in this case. His employers asked the plaintiff
to go with their policemen to the company's office. On arrival at the company's office,
he was asked to wait in the waiting room while the two policemen remained in the
neighbourhood. In an action for false imprisonment, the defendants were held liable.
The contentions of the defendants that the plaintiff was perfectly free to go anywhere
he liked, that he knew it and that he did not desire to go away, was rejected by the
court on the ground that the plaintiff from the moment came under the influence of the
police was no longer a freeman. Atkin L.J. said:

"It appears to me that a person could be imprisoned without his knowing it. I
think a person can be imprisoned while he is asleep, while he is in a state of
drunkenness, while he is unconscious, and while he is a lunatic."6

________________________

1. Hergtt v. Bond, AIR 1935 SC 669; Lalta Pdt. v. Arhafi, 1948, p. 135.

2. Warner v. Piddiford, 1858 CBBS 180.

3. Grainger v. Hill, (1878) 4 Big NC 212.

4. (1920) 122 LT 44.

5. Grainger v. Hill, Ibid., where it has been held that imprisonment is possible even if the plaintiff was too ill

to move in the absence of restraint.

6. See also Herring v. Boyle, (1834) 1 Cr M&R 377 where a boy wrongfully kept at a school during holidays

was not cognizant of the restraint. It was held no action lay. This case was not quoted in Meering's case.

The learned Lord Justice gave this opinion on the ground that, although a person might
not know he was imprisoned, "his captors might be boasting elsewhere that he was." It
is submitted that this ground is not intellectually satisfying. This ground seems to be
relevant rather to the tort of defamation, or injury to man's reputation, than to false
imprisonment, which is an injury to his person. However, the actual decision in
Heering's case1 can certainly be justified on the ground that restraint of personal liberty
is a very serious matter.

7.3. False imprisonment by the defendant

It has been seen that whenever a defendant unlawfully detains a plaintiff, even if the
plaintiff does not know about his detention, it amounts to False Imprisonment. But it
may be pointed out that it is not necessary that the defendant himself unlawfully
detained the plaintiff by actual force or threat of force. Even if the defendant caused the
unlawful detention of the plaintiff, he would be liable for false imprisonment. This may
be where the defendant caused the unlawful detention through his agent or servant
acting in the course of employment. This is illustrated in the case of Gouri Prasad v.
Chartered Bank.2

In this case an agent of the chartered Bank, charged the plaintiff with an offence and
caused him to be arrested and to be detained for an hour at a police station. It was
found by the court that the agent of the Bank had reasonable ground for thinking that
the plaintiff had committed the offence, but it was proved in the end that the plaintiff
was not guilty. It was held by the court that the detention was unjustified and,
therefore, defendant liable.

The court then pointed out that the common law of England relating to the right of
arrest by private individual does not apply in India because of the specific provisions in
section 59 of the Code of Criminal Procedure.3 It was, therefore, stated by the court
that in a suit for false imprisonment, the defendant can justify his act if he proves (a)
that he did not arrest or did not cause the arrest of the plaintiff, or (b) that the offence
was cognisable and nonbailable and had been committed in his presence, or (c) that he
was justified in law in arresting the plaintiff. If the defendant proves any of the
aforesaid propositions, the plaintiff's claim must fail. The ground that in arresting or
causing the arrest of the plaintiff the defendant had reasonable and probable cause is
not considered material.

Again, the defendant may be liable for false imprisonment, if he procures ministerial
officers to arrest unlawfully or to execute a false order, in such a way as to make them
his agent i.e., there must be actual direction or authorisation to constitute them the
informant's agent.4 For example, in the case of Sadik Hossain

_________________________________

1. Herring v. Boyle, (1834) 1 Cr. M&R 5354, per Atkin L.J.

2. AIR 1925 Cal 1884.

3. The court stated that according to section 59 of the Cr PC the intention of the legislature appears to have

been to restrict the right of arrest by a private individual to cases in which a cognisable and nonbailable

offence has been committed in the presence of the person who arrests or causes the arrest of the offender.

It is not essential that a private person, in whose presence a nonbailable and cognisable offence is

committed, should himself physically arrest the offender. He may cause such offender to be arrested by any

other person.

4. Anwer Hussain v. Ajoy K. Mukherjee, MANU/SC/0374/1965 : AIR 1965 SC 1651.

Khan v. Taffazal Khan,1 the defendant, out of malice, asked a constable to arrest the
plaintiff stating that he had stolen defendant's articles and the constable arrested the
plaintiff, it was held by the court that arrest of the plaintiff amounted to false
imprisonment by the defendant for which he was liable in damages.2
But where the defendant merely gives an information to the ministerial officers, on
which the ministerial officers choose to act is insufficient to constitute them the
defendants agent.3 If a police officer on receiving a complaint arrests a person in the
exercise of his powers under the common law or under a statute like the Code of
Criminal Procedure in India, then the complainant is not liable for false
imprisonment.4 It will depend on the facts in each case whether the arrest by the police
officer was caused in a ministerial capacity and in compliance with the complainant's
request or in the exercise of his own powers.3

7.4. Partial restraint

It has been seen that in the case of false imprisonment there must be total restraint of
the liberty of a person and without lawful justification. But where the wrongful restraint
on the liberty of a person is partial, it does not amount to false imprisonment. A leading
English case on this point is that of Bird v. Jones.5

The defendant wrongfully enclosed part of the public footway on a bridge, put seats in it
for the use of spectators to view the boat race in the river. The plaintiff insisted on
passing along this part of the footpath, and climbed over the fence of the enclosure. The
defendant refused to let him go forward, but told him that he might go back into the
carriage way and cross to the other side of the bridge if he wished. He declined to do so
and remained in the enclosure for thirty minutes. On being sued, it was held by the
court that the defendant was not liable as plaintiff's movement was not restrained in
every direction.

Similarly, it will not be a tort of false imprisonment if a person himself is not confined,
but is restrained in going in a desired vehicle or taking the article which he wishes to
carry and without which he is not willing to proceed. An Indian case of Maharani of
Nabha v. Province of Madras, which followed Bird v. Jones, illustrates this point.

The facts briefly were that under government orders the ExMaharaja was

___________________________

1. (1939) 43 CWN 1080.

2. Indian courts followed the decision of an English case: Austin v. Dowling, 1870 LR 5 CP 

534, where the defendant's wife handed over the plaintiff into the custody of a constable on a charge of

felony. The defendant then laid a definite charge of felony against the plaintiff, but on an enquiry by the

Magistrate, the plaintiff was discharged. It was held that the defendant was liable for false imprisonment till

the production of the plaintiff before the Magistrate. See also other Indian cases where this decision has

been followed; Thakdi Hajji v. Budruddin Saib, ILR 39 Mad 208; Bheema Donti, (1875) 8 MHC 38; where a

wrong person is arrested and imprisoned under a decree to which he was no party, the person setting the

court in motion is not liable for such arrest and imprisonment if he did not obtain the process fraudulently
 or improperly; See also, Onkar Mal v. Banwari Lal, MANU/RH/0030/1962 : AIR 1962 Raj 127.

3. See Balbhaddar Pandey v. Basdeo, (1906) 29 All 44.

4. He may be liable for malicious prosecution, discussed infra.

5. (1845) 7 QB 742.

restricted in his movements to the municipal limits of Kodaikanal. The Maharani was to
leave Kodaikanal for Madras in a car, but the Superintendent of Police, Madurai, was
wrongly informed that the exMaharaja was going with his family to Madras. He
telephoned to a Sub-Inspector of that area to prevent the exMaharaja from leaving
Kodaikanal. The SubInspector misunderstood the message and took it to be a direction
to prevent the Maharani from leaving Kodaikanal. When the Maharani came with her
daughter by a car to the Kodaikanal railway station to leave for Madras by train, the
SubInspector told her not to board the train which had arrived and posted two
policemen near the railway compound to prevent her car from being taken out of the
compound. In a suit for damages by the Maharani and her daughter alleging that the
acts of the police officers were done in their official capacity and were quite irregular
and without justification, it was held that no wrongful confinement could be said to have
taken place.

"The offences of wrongful confinement or restraint are offences affecting the

human body and cannot be said to have been committed if a person is not
himself restrained or confined but the liberty of going in the conveyance in which
he wishes to go or of taking the article which he wishes to carry and without
which he is not willing to proceed is denied to him."

7.5. Means of escape

Another important question arises where a person imprisoned had the means of escape,
but did not know about it. Would it amount to false imprisonment? There is no case law
on the point. However, it is submitted that his detention would amount to false
imprisonment if as a reasonable man he would not have realised it that he had an
available outlet. Thus, for example, if I pretend to turn the key of the door of a room in
which you are and take away the key, it would seem unreasonable if you made no
attempt to see whether the doors were in fact locked. A more difficult problem is that
you have a duplicate key in your pocket but have forgotten its existence. It does not
follow that a reasonable man never has a lapse of memory.

7.6. Detention without lawful justification

In the case of false imprisonment it is necessary that the total restraint or detention
should be unlawful or without any lawful justification. Thus in Rudal Sah v. State of
Bihar,1the petitioner was acquitted by the court in 1968 but was released from the jail
after fourteen years in 1982. The State pleaded that the detention was for the medical
treatment of the petitioner for his mental imbalance. The plea was rejected by the court
and, as an ancillary relief, in a writ of habeas corpus by the petitioner, the Supreme
Court granted a sum of Rs. 35,000 as compensation as an interim measure without
precluding the petitioner from claiming further compensation.

Similarly in Bhim Singh v. State of J&K,2 the petitioner, an MLA of the J&K Assembly
was wrongfully detained by the police in order to prevent him

____________________________

1. MANU/SC/0380/1983 : AIR 1983 SC 1086.

2. MANU/SC/0064/1985 : AIR 1986 SC 494.

from attending the Assembly session. The Supreme Court held it a mischievous and
malicious detention and granted exemplary damages amounting to Rs. 50,000.

Kundan Lal v. Dr. Des Raj1, is another illustration of unlawful detention where the
superintendent of police, on an application moved by the surety, cancelled the bail bond
and ordered the rearrest of the plaintiff. Consequently the sub-inspector rearrested him.
It was held by the court that since Superintendent of Police did not have such a power,
his order and consequential rearrest of the plaintiff were unlawful. Accordingly, both the
Superintendent of Police and the sub-inspector were held liable for false imprisonment.

In the case of Gankipati v. Araza Biksham, the defendant made a false report to the
police that the plaintiff was instrumental in setting fire to his property. Consequently,
the plaintiff was arrested by the police but the charge was found to be false and
therefore he was discharged. Since the defendant made the complaint without any
justification which resulted in the arrest of the plaintiff, the court held the defendant
liable for false imprisonment.

8. Defences

Most of the defences depend upon conditions which in general negative tortuous
liability.2 Some particular instances may be mentioned here.

8.1. Reasonable condition

It does not amount to false imprisonment to prevent a man from leaving your premises
because he has not fulfilled reasonable condition subject to which he entered. It was
laid down in the case of Robinson v. Balmain Ferry Co. Ltd.3

The plaintiff paid a penny for entry to the defendant's wharf from which he proposed to
cross the river by one of the defendant's boat. A boat had just gone and as there was
not another for twenty minutes, the plaintiff wished to leave the wharf when he was
directed to go through the wharf's exit. The rules as to exit required payment of one
penny. The plaintiff refused to pay the penny and, therefore, defendant declined to let
him leave the wharf unless he did pay. The plaintiff then claimed damages for the tort
of false imprisonment. It was held by the Privy Council that this was not false
imprisonment as the charge of one penny imposed by the defendants for the exit was
reasonable. The Privy Council stated:

"There is no law requiring the defendants to make exit from their premises
gratuitous to people who came there upon a definite contract which involves
their leaving the wharf by another way. The question whether the notice which
was affixed to these premises was brought home to the knowledge of the
plaintiff is immaterial, because the notice itself is immaterial."

Another important case on this point is of Herd v. Weardale, Steel, Coal and

______________________________

1. (1954) 56 PLR 331.

2. See Chapter II, supra.

3. 1910 AC 295.

4. 1915 AC 67.

Coke Co.4 where the House of Lords reached the same conclusion.

A miner descended a coal mine at 9.30 a.m. for the purpose of working therein. He was
entitled to be raised to the surface in a lift at 4 p.m. On arriving at the bottom, he
wrongfully refused to do certain work, and at 11 a.m. he requested to be taken to the
surface in a lift. His employers refused to permit him to use the lift until 1.30 p.m.
although lift was available. It was held by the court that on principle of volenti non fit
injuria, this would not amount to false imprisonment.

But what would happen in a case where a person enters a bus, discovers his mistake
and is not allowed by the conductor to get-off unless he pays the minimum fare or
where a student mistakenly enters the wrong lecture room and is not allowed by the
lecturer to leave until the end of the lecture on the ground of interruption of discourse?
In such kind of cases, it is submitted, that the question to be determined would be
whether the mistake was reasonable or the condition of exit was reasonable.1

8.2. Judicial authority

In India, the Judicial Officers are protected from liability for doing a wrongful thing in
the discharge of their duty and hence a Judicial Officer cannot be sued for false
imprisonment. Section 1 of the Judicial Officers' Protection Act, 1850, in so far as it, is
material, provides:

"No judge, Magistrate, Collector or other person acting judicially shall be liable to
be sued in any civil court for any act done or ordered within the limits of his
jurisdiction: provided that he at the time, in good faith, believed himself to have
jurisdiction to do or order the act complained of……"

From the above provision it may be noticed that if the act done or ordered to be done in
the discharge of judicial duties is within the jurisdiction of a judicial officer, the
protection is absolute even if the act done or ordered is erroneous, irregular or even
illegal or is done or ordered without believing in good faith, that he had jurisdiction to
do or order the act complained of. Moreover, a judicial officer acting in the discharge of
his judicial duties is still protected if the act done or ordered is not within the limits of
his jurisdiction provided that at the time of doing the act or giving the order, he in good
faith believed himself to have jurisdiction to do or order the act. 2 It may be noted that
the expression `jurisdiction' does not mean the power to do or order the act impugned
but generally the authority of the judicial officer to act in the matter.3

Thus, from the above provision it follows that a judicial officer acting in the discharge of
judicial duties may be held liable when it is found that he maliciously or knowingly acted
outside of his jurisdiction, or ought to have

__________________________

1. See also, Street Law of Tort, 4th Edn., p. 25 (8).

2. See, Anwar Hussain v. Ajoy Kumar Mukherjee, AIR 1965 SC 165; See also Tayen v. Ram Lal, ILR 12 All

115.

3. Anwar Hussain v. A.K. Mukherjee, cit. Ibid.

4. Anwar Hussain v. Ajoy Kumar Mukherjee, cit. ibid.; See also, S. Pandey v. S.C. Gupta, AIR 1959 Ass 28;
State of Uttar Pradesh v. TuIsi Ram, MANU/UP/0034/1971 : AIR 1971 All 162.

known of the excess of jurisdiction.4

Again a judicial officer may be held liable in tort when he acts in his executive capacity.
An important case on this point is that of Anwar Hussain v. Ajoy Kumar
Mukherjee1 decided by the Supreme Court in 1965.

The facts briefly were that in March, 1970 in the District of Kamrup, State of Assam,
there were communal disturbances resulting in rioting and arson. The plaintiff Ajoy
Kumar was arrested on March 17, 1950, by the Circle Inspector of police pursuant to
the authority given by the defendant, Anwar Hussain, S.D.O., who remanded him to
custody. On May 31, 1950, Mr. J. Barua, the Magistrate First Class, closed the criminal
proceedings against Ajoy Kumar by recording that "a great confusion exists amongst
police officers about the case. It is surprising that the officerincharge should refer to the
Circle Inspector a authority for the arrest and the latter to the SubDivisional Officer
(i.e., Mr. Anwar Hussain). No case also seems to have been registered at the police
station. I fail to see under strength of what the accused has been sent up."

The plaintiff then instituted civil action against the defendant and others and claimed
damages for false imprisonment on the ground that as an active member of the Peace
Committee to bring about harmony between the two communities, he had incurred
displeasure of the defendant, and that the latter had, with a view to insult and disgrace
him, ordered his arrest, detention and imprisonment maliciously recklessly and without
any lawful excuse or justification.

The defendant contended that the plaintiff was arrested and detained in bona fide
exercise of executive power vested in him, there being "credible information and
reasonable suspicion" that the plaintiff was concerned in some incidents for which a
section of the local community was responsible.

The lower court found that the arrest of the plaintiff was reckless and without any lawful
excuse and that the defendant in issuing an order for arrest of the respondent had not
acted in the discharge of the judicial duties, but had merely as an executive officer.
Accordingly, the lower court awarded damages amounting to Rs. 5000 to the plaintiff
for false imprisonment which was confirmed by the High Court.

On appeal to the Supreme Court, the judgment of the lower court was confirmed and it
was held:

"the appellant held two offices—one an executive office and the other a judicial
office. He pleaded protection against the liability arising out of his action
substantially on the ground that he acted in the discharge of his duty under the
direction given by his superior (i.e., the Deputy Commissioner). In so pleading
he was relying primarily upon his executive office. The court of first instance and
the High Court have come to the conclusion that the appellant had "acted
recklessly and maliciously" in arresting the respondent. The conclusion is based
upon appreciation of evidence and has not been challenged before us. As a
judicial officer, the appellant has no protection because he is not shown to have
acted in order that the

________________________________

1. MANU/SC/0374/1965 : AIR 1965 SC 1651.

respondent be arrested in the discharge of the duties of his office as a

Magistrate."
8.3. Arrest by Police

Similarly no action will lie against a person or police officer making arrest in obedience
to a warrant issued by a judicial authority, notwithstanding any defect of jurisdiction in
such judge or magistrate. But this protection from liability does not extend to any
irregularity in the execution of the warrant and there is no defence if the person other
than the person named in the warrant is arrested, however innocent the person making
the arrest may be. The person or police officer making the arrest must be in possession
of the warrant failing which the defence of lawful authority will not hold good.

Where, however, a policeman arrests a person on reasonable suspicion of any crime for
which arrest may be made without a warrant, he must inform the person of the true
grounds on which he is making the arrest and, if he either gives no such information, or
gives a reason which is not the true reason, he is liable for false imprisonment. 1 This
does not mean that if an officer is arresting a deaf person he has to possess himself of
an ear crumpet, or something of that sort or shout at the top of his voice. He must do
what a reasonable person would do in the circumstances.2

8.4. Arrest on complaint before a Judicial Officer

Where a party files a complaint before a judicial officer and the judicial officer in the
discharge of his judicial duty issues a warrant upon which the person charged is
arrested, the party filing the complaint is not liable for false imprisonment. 3 The reason
is that a man is liable only for the acts of himself or his agent, and a judge is no man's
agent. He acts in his own judicial discretion. The opinion and judgment of a judicial
officer are interposed between the charge and the imprisonment.4

9. Remedies

The following remedies are available in the case of false imprisonment:

(i) Selfhelp.—No one who is unlawfully detained need wait until he is released
before seeking redress. He can use selfhelp in order to escape.

(ii) Habeas Corpus.—A person who has been wrongfully detained, or any person
on his behalf, may move an application under Article 32 or 226 of the
Constitution to the Supreme Court or the High Court respectively for the issue

_______________________________

1. See Christie v. Leachinsky, 1947 AC 573; John Lawis & Co. Ltd. v. Times, (1962) 1 All ER 1203;

Beckwith v. Philby, (1827) 6 B&C 635. For arrest by private person without a warrant, see Gouri Prasad v.

Chartered Bank, supra, under the heading false imprisonment by the defendant. Sec. 59 of the Criminal

Procedure Code.

2. Wheatly v. Lodge, (1971) WIR 29; R. v. Kulynyez, (1971) 1 QB 367; Times v. John L & Co. Ltd., (1951)
 2 KB 459 (467).

3. Austin v. Dowling, cit, ibid.; Anwar Hussain v. A.K Mukherjee cit., ibid; Onkar Mal v. Banwari
Lal, MANU/RH/0030/1962 : AIR 1962 Raj 127.

4. Per Willes J. in Austin v. Dowling, 1870 LR 5 CP 534.

of writ of Habeas Corpus. This remedy is for the release of a person who has
been wrongfully detained. However, it is possible that the person wrongfully
detained may have been set free by the time writ of Habeas Corpus is disposed
of. In such circumstances, the court may also grant compensation as ancillary
relief. In Rudal Sah v. State of Bihar1 and Bhim Singh v. State of J&K,2 such
compensation was granted by the Supreme Court in the writ of Habeas Corpus.

It may be noted that the remedy of Habeas Corpus in not available during a
proclamation of emergency.3

(iii) Action for damages.—The damages may be claimed not only for injury to the
Liberty but also for disgrace, humiliation, indignity and mental suffering.4 All
these are included in general damages which are usually awarded by the court in
such kind of cases.

________________________________

1. MANU/SC/0380/1983 : AIR 1983 SC 1086, discussed supra.

2. MANU/SC/0064/1985 : AIR 1986 SC 494, discussed supra.

3. A.D.M., Jabalpur v. Shivkant Shukla, 1976 SCC 521.

4. See also, McGregor on Damages, 14th Edn., para 1357.

© Universal law Publishing Co.

   

CHAPTER 10

TRESPASS TO LAND

SYNOPSIS

1. Introduction

2. Possession
3. Trespass

4. Entry: essential in trespass

5. Trespass on highway

6. Trespass in the airspace

7. Trespass ab initio

8. Continuing trespass

9. Entry with licence

10. Remedies

10.1. Right to re-enter

10.2. Action for ejectment or recovery of land

10.3. Suit for Mense Profits

10.4. Distress damage feasant

1. Introduction

Trespass to land means an unjustifiable interference with the possession of land.

Trespass is therefore a wrong against possession rather than ownership. Possession is
therefore an important factor in relation to trespass. It is, therefore, necessary to
explain the term possession.

2. Possession

The "possession" is an outward symbol of ownership, and it is, therefore, protected in

its own right. According to Salmond "the possession of a material object is the
continuing exercise of a claim to the exclusive use of it." It involves two elements (a)
mental, and (b) physical.

The `mental' element consists in the intention of the possessor with respect to thing,
and `physical' consists in the external facts in which this intention has realised,
embodied or fulfilled itself. The mental element is called a "animus", and the physical
element "corpus".

Thus, "animus" means intention to have a thing and corpus means physical possession
of that thing. Mere physical possession of a thing does not confer possession in the
person who holds it. For example, if X examines gold coins at a jeweller's shop, at that
time he has mere custody of it, not possession. But if he runs away with the gold coin,
he is in full possession of it. Here he has got the necessary animus and possession both,
and can exclude others except the jeweller. Thus, wrongful possession is protected by
law against all except the real owner of the gold coin i.e., the jeweller.

Possession is of two kinds (a) possession in fact (de facto possession) and (b)
possession in law (de jure possession). A servant's possession is `in fact' while master's
possession is `in law'. The difference is in the mental state of the possessor. The
servant's intention is to exclude others on behalf of his master. He can maintain an
action under trespass against those who interfere with the possession of this article or
land. A master's intention is to exclude others from interfering with the thing and he
does so on his own behalf.

Similarly, there is difference between `right to possession' and `right of possession'. A

landlord who has let his house to a tenant for a period of three years has the right to
possess the house at the expiry of three years and during this period the tenant has the
right of possession. Thus, a person who has the right of possession is entitled to sue for
trespass and not he who has right to possess.1

Where, however, two person have possession of the land, i.e., one has de jure
possession as of right and the other has de facto possession by his presence, de jure
possession prevails. For example, a party having a right to enter the land, acquires by
entry the lawful possession of it. He may maintain an action of trespass against any
person who, being in possession at the time of his entry, wrongfully continues upon the
land.2

It has been seen above that a person having animus and corpus both, has a right to
maintain an action for trespass against any one who interferes with his possession
except the two owners.

3. Trespass

Any interference with the possession of land without justification signifies trespass to
land.3 Thus an owner in possession of land can bring an action for trespass against a
person who interferes with his right of exclusive possession, whether by actually
dispossessing him of the land or by intruding upon it or by doing an act affecting the
sole possession of the owner, in each case without justification. In trespass, therefore,
neither force, nor unlawful intention, nor actual damage, nor the breaking of an
enclosure is necessary. What is necessary is that there must be invasion of private
property, be it ever so minute, but without justification.4

4. Entry: essential in trespass

It has been seen in earlier chapter that intention is a necessary element to constitute
trespass to person.5 But it is not so in every case of trespass to land. An
______________________

1. Layender v. Betts, (1942) 2 All ER 72.

2. Butcher v. Butcher, (1827) 7 B&C 309.

3. Trespass to land is also an offence under section 441 of the IPC provided the requisite intent is present.

4. Entick v. Carrington, (1765) 19 St Tr 1066.

5. See also, Fonaler v. Launing, (1959) 1 QB 426; Letang v. Cooper, (1965) QB 232.

entry upon another's land constitutes trespass to land whether or not the entrant knows
that he is trespassing.1 Thus, where the defendant consciously enters upon a land
believing it to be his own but which turns out to be of the plaintiff, he is liable for
trespass. Accordingly, any voluntary intrusion upon land without the consent of the
person having possession or right of immediate possession, is a trespass to land. It is
actionable per se without proof of damage.2 Thus, it is trespass for a lessor, during the
continuance of the lease, to enter and interfere with the property 3 unless the terms of
the lease permit his presence. Intrusion includes any sort of entry 4 or contact5 directly
from an act of the defendant—even placing a ladder against premises 6, or driving a nail
into a wall of another7, or growing a creeper upon it,8 or placing rubbish against the wall
of another9, are illustrations of trespass.

Any involuntary entry upon the land of another does not amount to trespass. For
example, when a person is thrown upon the land of another by some one else. 10 In such
a situation is does not amount to trespass because there is no act of entry by the
defendant.

Any one who enters private land with the permission of the person in possession is a
licensee, and not a trespasser. He is liable for trespass only when he exceeds the
licence. Permission to enter one part of a building or enclosure is not a general licence
to go everywhere. Thus, where a person is allowed to sit in the drawing room, enters
the bed room without justification, the entry into bed room is a trespass. 11 A licence to
enter premises for one purpose12 does not justify behaviour neither necessary nor
incidental thereto.13

Trespass can also be committed by a person himself or through his agent or servant or
through some material object. For example, throwing of stones on another's land or the
cattle of a person grazing on the land of another.

In trespass, the injury should be direct. If it is indirect or consequential, it may be a

case of nuisance and not of trespass. If I plant a tree on your land, it

_______________________________
 1. Conway v. George Wimpey & Co. Ltd., (1951) 2 QB 266; Jaliffe v. Willmen & Co., (1971) All ER 478.

2. See, Graham v. Peat, (1861) 1 East 244; Watson v. Murrey & Co., (1955) 1 All ER 411; Entick v.

Carrington, (1558-1774) All ER 41; Lavender v. Betts, (1942) 2 All ER 72.

3. Lovender v. Betts, (1942) 2 All ER 72.

4. If a person places a part of his foot on the plaintiff's land unlawfully it is in law as much a trespass as if

he had walked hundred metres on it; Ellis v. Loftus Iron Co., 1874 LR 10 CP 10.

5. Riding over the land of another, Paul v. Summerheys, (1878) 4 QBD 9.

6. Wetripp v. Beldock, (1938) 2 All ER 779.

7. Lawrence v. Obee, (1815) 1 Stark 22.

8. Sunpson v. Weber, (1925) 133 LT 46.

9. Gregory v. Piper, (1829) 9 B&C 59.

10. Smith v. Stone, (1647) Style 65.

11. But a lawful visitor does not became a trespasser who erroneously but, in all the circumstances,

reasonably exceeding his licence; Pearson v. Coleman Bros., (1948) 2 KB 359.

12. For example, seeing a particular theatrical performance or viewing exhibits at a museum.

13. Such as smoking cigarette or taking photographs when told not to do so.

is a case of trespass. If I plant a tree on my land and its roots and branches spreads in
or on your land, it amounts to nuisance. Thus, to throw stones upon the premises of
another is a wrong of trespass; to allow stones from a ruinous chimney to fall upon the
premises of another is a wrong of nuisance. Similarly, planting a tree upon the land of
another is a case of trespass but if a person plants a tree on his own land and its roots
and branches spread in or on the land of another, it amounts to nuisance.

If a person is the owner of a land, the sub-soil also belongs to him. Trespass can be
committed by an intrusion on the sub-soil. Taking minerals by some one from out of the
sub-soil of another is an example of trespass. It is also possible that surface is in
possession of A and sub-soil in possession of B. If C walks on the land that will be a
trespass against A only. If C makes a tunnel from his land into B's sub-soil that is a case
of trespass against B only. Again, if C makes a hole vertically in the land, then it is a
trespass against A and B both.

5. Trespass on Highway

When a man's land spreads over highway the soil over such land is presumed to be
owned by him. An action for trespass can be maintained only when the trespasser
makes an unjustifiable and unreasonable use of land. Diplock J. in Fowler v.
Lanning1 observed that in such cases the plaintiff has to prove negligence on the part of
defendant. In Harrison v. Duke2 the court observed that the public's interest in the
highway is to have the right of passage. When a person on the highway uses it in
reasonable and usual way, he cannot be said to be a trespasser but if he uses it
unreasonably he will be liable as a trespasser. If there is unintentional trespass upon
the land adjoining the highway, the plaintiff will have to prove negligence on part of the
defendant. In Milkman v. Maisey3 the defendant walked to and fro on the highway on a
fifteen yard stretch to take notes of some race horse trails on the plaintiff's land
adjoining the highway. He was held to be a trespasser. In Olga Tellis v. Bombay
Municipal Corporation4 the court held that public streets are dedicated for the purpose of
passage for public use and cannot be used for private residence.

6. Trespass in the airspace

Trespass in the airspace above the land is governed by the principle enshrined in the
maxim `cujust est solum ejus est usque ad coelum'. It means `whose is the soil his is
also that which is above it'. This maxim does not mean any ownership over the infinite
space. It means only that portion of airspace, which is capable of being reduced into
private ownership.

Trespass over airspace may be committed through aircraft or otherwise. In Gifford v.

Dent5, the tenant of the upper floor of a building affixed an ornamental

__________________________

1. (1959) 1 QB 426 (439).

2. (1893) 62 LIQB 117.

3. (1900) 1 QB 752.

4. MANU/SC/0039/1985 : (1985) 3 SCC 545.

5. 1926 WN 336.

sign to his premises and that projected over a forecourt occupied by another tenant. It
was held to be a case of trespass.

With regard to trespass by aircraft, there are statutes both in England and in India. In
England the Civil Aviation Act, 1949 (section 40) provides, that no action will lie for
trespass or nuisance if aircraft flies over the property on a reasonable height (keeping in
mind the wind and weather etc.). But where material damage is caused by air aircraft,
the owner of the aircraft shall be liable for damages without proof of negligence.
In India, the Aircraft Act, 1934 coupled with Aircraft Amendment Act, 1960, makes it a
punishable offence if a person wilfully flies an aircraft in such a manner so as to cause
danger to any person or his property, but it contains no provision of civil liability in tort
such as in the English Act.

7. Trespass ab initio

The basic principle is that when a person enters certain premises under the authority
given by law and, after having entered there, he abuses that authority, it will be
considered an trespass ab-initio. This means that the law considers a person as a
trespasser from the very beginning, even if he had entered lawfully there under the
presumption that he had gone there with that wrongful purpose in mind. But a person
becomes trespasser ab initio only when his wrongful act amounts to misfeasance and
not nonfeasance. Misfeasance means doing of a wrongful act, and nonfeasance means
omission to do something. An illustration on this point in the case of Six
Carpenters1 where these carpenters entered an inn and ordered for some wine and
bread. After having taken the wine and bread, they refused to pay. The court held that
they were not trespassers ab initio as this was a case of only non-payment i.e.
nonfeasance and not a case of misfeasance.

It is not every case of misfeasance that amounts to trespass ab initio unless the
presence of the defendant on the premises by his subsequent wrongful act becomes
wholly unjustified. It was so held in the case of Elias v. Pasmore 2 where certain police
officers entered the plaintiff's premises to make a lawful arrest. There they removed
certain documents without having any lawful authority. This was an act of misfeasance
but their presence had not become wholly unjustified because the arrest i.e., the lawful
purpose, had yet to be accomplished. The court held them trespassers with regard to
the documents which they had seized and not trespassers ab initio to the premises.

8. Continuing trespass

The continuance of a trespass is considered in law a separate trespass on each day. If a

man builds a wall or throws a heap of stones on his neighbour's land, it will be a
continuing trespass so long as it is there. Here the right to sue will continue from day to
day till the encumbrance is removed. An action may be initiated for this original
trespass in placing the encumbrances on his land, and another action for continuing the
things so erected.3 The court in the case of

_____________________

1. (1610) 8 Co Rep 146a.

2. (1934) 2 KB 164.
 3. Holmes v. Wilson, (1839) 10 Ad&E 503.

Holmes v. Wilson1 held that a recovery of damages in the first action, by way of

satisfaction does not operate as a purchase of the right to continue the injury. It may
also be noted that continuing of trespass on day to day basis has no application when
there is a complete ouster of the plaintiff. Where the plaintiff has been completely
dispossessed or ousted, the resulting injury is complete on the day of his ouster or
dispossession and, therefore, there would be no scope of applying the principle of
continuing trespass.2

9. Entry with licence

To enter certain premises with the consent of the person in possession amounts to
licence. The term `licence' has been defined in section 52 of the Indian Easements Act,
1882. It says: "Where one person grants to another, or to a definite number of persons
a right to do, or continue to do, in or upon the immovable property of the granter,
something which would, in the absence of such right, be unlawful, and such right does
not amount to an easement or an interest in property, the right is called a licence."

Permitting a person to cut a tree on one's own land is an example of licence. After the
licence is revoked, the licensee must quit the place within reasonable time. If he does
not, he will become a trespasser. The question arises: can the licensor revoke the
licence. If so, under what circumstances. For this purpose the licences are of two kinds:

(i) a bare licence;

(ii) a licence coupled with grant.

The licensor can revoke a `bare licence' but he cannot `revoke a licence coupled' with
grant. Permitting a person to cut a tree on one's land is a licence, but to carry away the
tree cut down is a grant. Such a licence which is coupled with an interest or grant
cannot be revoked.

In 1845 in the case of Wood v. Leadbetter 3, the above rule was not followed. The facts
were that the plaintiff had purchased from the defendant a ticket entitling him to remain
in an enclosure to witness a race course on certain days. On certain day while plaintiff
was watching the race course, the defendant wrongfully ejected him. The plaintiff sued
him, not for breach of contract, but for assault. The defence was that it was a bare
licence and therefore plaintiff had no right to remain there. It was held that the plaintiff
could not recover on the ground that he had no interest at all and even if it is presumed
that he had interest, it ought to have been created under seal.

The above decision was unjust and against the principles of natural justice. Therefore,
Wood's case was not followed by the Court of Appeal in the case of Hurst v. Picture
Theatres Ltd.4 Mr. Hurst brought a ticket to see a cinema show at the defendant's
theatre. He took his seat, but was wrongfully taken out of the

__________________________

1. Holmes v. Wilson, (1839) 10 Ad&E 503.

2. Balkrishna S.P. Waghmare v. Dyneshwar Maharaj Sansthan, AIR (1959) SC 798; See also sec. 23 of

Limitation Act, 1908.

3. (1845) 12 M&W 838.

4. (1915) 1 KB 1.

theatre by force. He sued for assault and the court awarded £ 150 as damages.
Buckley, L.J., held that right to go into the picture theatre is a bare licence, but right to
see and enjoy the series of pictures and performances from beginning to end, is a
grant. The right to go in the theatre was granted to him for the purpose of enabling him
to have that which had been granted to him, namely, the right to see the theatrical
performance. So it was a licence coupled with the grant. And it cannot be revoked. The
defendant broke that contract and it was tort of assault on their part to remove him.
Later on the decision in Hurst's case was formally approved by the House of Lords in
Winter Garden Theatre Ltd. v. Millennium Production Ltd.1

10. Remedies

10.1. Right to re-enter

The person entitled to possession can re-enter the premises in a peaceful

manner. Ousting a trespasser by a person having a right to do so is not a
wrongful act. A beautiful illustration on this point is the case of Hemmings v.
Stoke Poges Golf Club2, where the plaintiff was the tenant of a cottage owned by
the defendant. On termination of his service, the defendant required him to
vacate the premises. The plaintiff refused to quit the premises after notice had
been duly given to him. The defendant thereupon entered the cottage and
removed the plaintiff and his furniture with reasonable force. The plaintiff sued
the defendant for assault, battery and trespass but the defendants were held not
liable.

10.2. Action for ejectment or recovery of land

A speedy remedy has been given under the Specific Relief Act, 1963 to a person who
has been dispossessed of immovable property otherwise than in due course of Law.
Section 6 of that Act provides:

"If any person is dispossessed without his consent of immovable property

otherwise than in due course of law, he or any person claiming through him
 may, by suit recover possession thereof, notwithstanding any other title that
may be set up in such a suit. No suit under this section shall be brought after
the expiry of six months from the date of dispossession."

Thus, under the Specific Relief Act, a person who had been dispossessed of certain
immovable property, without due course of law, can recover back the property without
establishing any title. Even a person who has superior title cannot evict another without
due process of law. If he does so, the person dispossessed will be restored back the
possession under the above possession of the Specific Relief Act, 1963.

The plaintiff, in order to succeed, must prove that (a) he was in possession of certain
premises or immovable property, (b) he was evicted by the defendant without due
course of law and (c) the suit has been brought within 6 months from the date of his
dispossession. It may be noted that this section gives relief

___________

1. 1948 AC 173.

2. (1920) 1 KB 720.

to a person who is in lawful possession of immovable property. It does not give relief to
a mere trespasser. As for example, I am away from my house for three days and
trespasser enters my premises, I can evict him and such a trespasser will have no
remedy against me.1

10.3. Suit for Mense Profits

This is an additional remedy against the trespasser apart from his ejectment. Here the
plaintiff can claim mense profits for the losses suffered by him during the period of
dispossession. Mense profits also include profits taken by the defendant during the
period of his occupancy. The plaintiff may sue for ejectment as well as for mense profits
in the same action.

10.4. Distress damage feasant

Distress damage feasant is a remedy which authorizes a person in possession of land to

seize the trespassing cattle or other chattels and detain them until compensation has
been paid to him for the damage done by the cattles or other chattels. Any chattel,
animate or inanimate, can be seized and detained. The thing seized may be a cricket
ball, horse, cow or even a railway engine. 2 The right to seize and detain a thing is not
only limited to damage done to land but also damage done to chattels. This was held in
the case of Boden v. Roscoe3, where an occupier of land was held entitled to seize and
detain a pony. He was entitled to detain the pony until compensation for the damage
done was paid.
It may be noted that right to detain an object is only when it is trespassing on the land
and not when the trespass is over and the object is not on the land.

Now in England the common law remedy of distress damage feasant has been abolished
by the Animals Act, 1971.4 In India the liability for cattle trespass is governed by the
Cattle Trespass Act of 1871.5

_________________________

1. Virijivandos v. Mohamed, (1881) 5 Bom 208. Such a trespasser is not considered in possession.

2. Ambergated Rly. v. Midland Rly., (1853) 2 E&B 793.

3. (1894) 1 QB 608.

4. See Chapter 21, Liability for Dangerous Animals.

5. Ibid.

© Universal law Publishing Co.

   

CHAPTER 11

TRESPASS TO GOODS & CONVERSION

SYNOPSIS

1. Trespass to Goods

2. Defences

3. Remedies

4. Conversion

4.1. Conversion by taking of goods

4.2. Conversion by detention of goods

4.3. Conversion by wrongful delivery of goods

4.4. Conversion by wrongful disposition of goods

4.5. Conversion by wrongful destruction of goods

 4.6. Miscellaneous forms of conversion of goods

5. Defence to conversion

6. Remedies

6.1. Damages

6.2. Re-delivery

7. Difference between trespass and conversion

1. Trespass to Goods

Trespass to goods means direct and wrongful interference with the plaintiff's possession
of goods. The interference with the possession of goods may be by seizure or removal
or by direct act causing damage to the goods. Trespass to goods may take innumerable
forms viz., removing a tyre from a cycle or a car1, scratching the panel of a coach2,
destroying or injuring the goods, beating or killing the animals or infecting them with
the disease3 or chasing the animals to make them run away from the possession of
owner or killing a dog by giving it poisoned meat.4 It should be noted that the injury or
damage must be direct and not consequential. Thus, in Kirk v. Gregory 5 on X's death,
his sister-in-law removed certain jewellery from the room where his dead body was
lying, and kept it in another room under a reasonable but mistaken belief that the same
was

_________________________

1. G.W.K. Ltd. v. Dunlop Rubber Co. Ltd., (1926) 42 TLR 376.

2. Fouldes v. Willoughby, (1841) 8 N&W 549.

3.Winfield Tort, 10th Edn., p. 403.

4.Solmond Torts, 14th Edn., p. 138.

5.(1876) 1 Ex D 55.

necessary for its safety. The jewellery was stolen from that room and the sister-in-law
was held liable for trespass to the jewellery. It is also necessary that the plaintiff must,
at the time of trespass, have possession of the goods, either actual or constructive, or a
legal right to the immediate possession. 1 A trespass to goods is also actionable per se
i.e., without any proof of actual damage. Earlier, in an action for trespass, it was not
necessary for the plaintiff to prove intention or negligence on the part of the defendant,
but now in the light of recent cases of trespass to person2, it appears that the plaintiff
should prove intention or negligence of the defendant in respect of trespass to
goods.3 In National Coal Board v. Evans4, the defendants had employed certain
independent contractors to make excavations on their land. Beneath the land some
electric cables were laid by the plaintiff's predecessor in title, of which the defendants
had no knowledge. The contractors had also no knowledge of the underground cables
and the same was damaged during excavations. The defendants were held not liable as
there was no fault on their part. Trespass is a wrong against possession rather than
ownership. A person in possession can maintain an action though somebody else is the
owner of that goods. A case on this point may be mentioned. In Winkfield case5, the
Postmaster General was a mere bailee of the mails. He could recover their value from
the wrongdoers due to whose negligence the mails on the board of a ship were lost.

Similarly, a trespasser cannot take the defence of jus terti. He (trespasser) is not
allowed to plead that some third party and not the possessor of it had a good title to the
goods. Armory v. Delamirie6, in an illustration on this point. The facts were that a
chimney sweeper's boy, who after finding a jewel had given it to a jeweller for
valuation, was held entitled to recover its full value from the jeweller on his refusal to
return the same.

A trespasser cannot by his trespass acquire the right of ownership in the goods. Such a
possession does not affect the right of the owner from taking back the property from
the trespasser.7

A joint owner of the property can maintain an action of trespass against the co-owner if
the co-owner has done something which amounts to his ouster.8

The wrongful attachment of goods amounts to trespass and is actionable. A person

whose property is attached before the judgment, is entitled to damages even though he
has failed to prove special damage.9

_________________________

1. Leitch & Co. v. Leydon, 1931 AC 106.

2. Fowler v. Lanning, (1959) 1 QB 426; Letang v. Cooper, (1964) 2 All ER 929: See also Chapter 9 supra.

3.Winfield Tort, 12th Edn., pp. 477-478; Salmond Torts, 18th Edn., p. 90; See also Wilson v. Lombank Ltd.,

(1963) 1 All ER 740.

4.(1951) 2 KB 861.

5.(1900-03) All ER 346.

6.(1721) 1 Stir 505.

7. Khan Mohammed v. State of Rajasthan, MANU/RH/0007/1967 : AIR 1967 Raj 37.

8. Jacob v. Seward, 1872 LR 5 HL 464.

 9. Ardul Subhan Sab v. Ramiah, ILR 1952 Mys 176.

2. Defences

Trespass to goods can be justified if it is done in defence of property1 or person, or in

the exercise of a legal right or under legal process. Thus, a man may not be liable if he
interferes with another's chattels in defence of his son's livestock.2 For example, if A's
dog attacks B's sheep, B may be justified in shooting it provided the shooting was
reasonable and essential for the protection of livestock. 3 Unreasonable or vindictive
measures viz., chasing pigs with a mastiff4 or shooting a dog when it is not attacking
the sheep5 will make him liable for trespass. Again, if the plaintiff had created an
obstruction, say by leaving his cart or horse on the road, and the defendant merely
removed the obstruction in the exercise of his right of way, it does not amount to
trespass.

Lawful distress for rent is a recognized right and it will be a defence of the trespass if
done in lawful exercise of it. It is also a defence it the trespass is done in the course of
legal process6, such as seizure of goods under a legal process. Inevitable accident is
also considered as a good defence i.e., when the trespass to goods takes place without
any intention or negligence. Thus, where the plaintiff's underground electric cables was
damaged in excavation work done by the contractors of the council, it was held that the
defendants were not liable as they were wholly without fault.7

3. Remedies

(a) Detinue.—It is an action for the recovery of goods wrongfully detained by the
defendant. When the defendant unlawfully detains the goods of the plaintiff and
refuses to deliver the same on lawful demand, the plaintiff can recover the same
by bringing an action for detinue. In England, detinue has been abolished by the
Torts (Interference with Goods) Act, 1997.8 However, the tort of conversion has
included those situations which were termed as detinue.9 Thus, under section 3
of the Act, when the goods are wrongfully detained by the defendant, the
plaintiff can claim delivery of the goods or payment of damages equivalent to
the value of the goods and consequential damages resulting from wrongful
detention.

Position in India:—In India `detinue' as such has not been mentioned as a

wrong. However, similar action for recovery of certain movable property has
been recognised by the Specific Relief Act, 1963. Sections 7 and 8 of the Specific
Relief Act are relevant for the recovery of specific movable property. Section 7
enables a person to recover his property in a manner provided by the Civil

_________________________
 1.Not necessarily his own, See Kirk's case discussed, supra.

2.Not necessarily his own, See Workman v. Cooper, (1961) 1 All ER 683.

3.See, Creswell v. Sirl, (1948) 1 KB 241.

4.See, King v. Rose, (1673) 1 Freem KB 347. A man may not set mastiffs upon pigs to kill them. He may

hunt them with a little dog.

5. Wells v. Head, (1831) 4 C&P 568.

6. Clessold v. Cratehley, (1990) 2 KB 244.

7.See, National Coal Baord v. Evans, discussed supra.

8.Section 2(1), Torts (Interference with Goods) Act, 1977.

9.Section 2(2), Torts (Interference with Goods) Act, 1977.

Procedure Code, 1908. However, section 8 of the Act provides speedier relief to
the plaintiff in certain cases to recover the specific property from the defendant
viz., (i) when the defendant is an agent or trustee for the plaintiff, (ii) when
compensation would not afford the plaintiff adequate relief, (iii) when it is very
difficult to ascertain the actual damage caused by its loss and (iv) when the
possession of the thing has been wrongfully transferred.

The Courts in India sometimes term it as an action for `detinue'. In Banshi v.

Goverdhan1; the defendant took a cycle on hire from the plaintiff, but failed to
return the same. He was held liable to pay an estimated value of the cycle
amounting to Rs. 300, to the plaintiff under an action for detinue.

(b) Damages.—In cases of trespass to goods, the damages in general are

measured by the value of the goods or the amount of injury done to them. If
there is any special damage from the immediate loss or injury, it may also be
allowed provided it is not too remote. 2 Thus, in Dajiba Anand Ray v. B.B. & E.I.
Rly Co.3, the facts were that the defendants without permission quarried on the
land of the plaintiff and removed a large quantity of stones from there. In an
action by the plaintiff, it was held by the court that he was entitled to recover by
way of damages the value of the stones after it was quarried. The court also
held that the defendants were not entitled to a deduction therefrom of the costs
they had incurred in quarrying the stones.

4. Conversion

Conversion is said to have been committed where a person intermeddles with the
property of another. In other words, "a person who treats goods as if they were his
when they are not, is liable to be sued in conversion. 4 According to Salmond, a
conversion is an act of wilful interference, without lawful justification, with any chattel in
a manner inconsistent with the right of another, whereby that other is deprived of the
use and possession of it. The expression wilful interference in the definition means that
the element of intention is necessary in constituting the tort of conversion. Thus,
intentional interfere with the property of another amounts to conversion, even if the
defendant honestly believes that he was entitled to do so and did not know of the right
held by the plaintiff. For example, an auctioneer who auctions the goods honestly
believing it to be of the seller and not of the plaintiff, is, guilty of conversion and liable
in an action for the same. Conversion may be committed in many ways:

(1)Conversion by taking goods.

(2)Conversion by detention of goods.

(3)Conversion by wrongful delivery of goods.

(4)Conversion by wrongful disposition of goods.

(5)Conversion by wrongful destruction.

(6)Miscellaneous forms of conversion.

___________________________

1. Banshi v. Goverdhan, MANU/MP/0034/1976 : AIR 1976 MP 125.

2. Gilbertson v. Richardson, (1848) SCB 502; Hugles v. Quentin, (1838) 8 CP 703.

3.(1869) 6 BHC (ACJ) 235; See also Martin v. Porter, (1839) 5 M&W 351.

4.Weir Casebook on Tort, 5th Edn., p. 404.

4.1. Conversion by taking of goods

Any one, who without lawful justification, takes possession of another man's
chattel with the intention of asserting dominion over it is guilty of conversion.
Therefore, a mere taking of chattel without any intention to exercise permanent
or temporary dominion may be a trespass and not a conversion. 1 For example,
to steal the goods is a conversion, but mere removal of the goods from one
place to another will not be an assertion of right adverse to the plaintiff's, and it
may not be conversion.2

If there is a wrongful taking, it amounts to conversion even if a person honestly

believed that he is entitled to it.3 Thus, in Roop Lal v. Union of India4, the facts
were that some military men found firewood lying near the bank of a river. They
thought that it belonged to none else except the government and, therefore,
 they had every right to take away the same for campfire and fuel. But this wood
infact belonged to the plaintiff. The plaintiff brought an action for the tort of
conversion. It was held that the Union of India is liable even if the military
jawans did not intend to commit theft or honestly believed that the wood
belonged to the government.

In Hollins v. Fowler5, B had obtained balls of cotton from the plaintiff by fraud.
The defendant, a cotton broker, without any knowledge, obtained bales of
plaintiff's cotton from one B and sold the same further, receiving only his
commission. The court held the defendant liable to the plaintiff for the tort of
conversion.

4.2. Conversion by detention of goods

The detention of a chattel amounts to a conversion only when it is adverse to

the owner or other person entitled to possession.6 Here the defendant must have
shown an intention to keep the thing in defiance of the plaintiff. Mere possession
of a chattel without title is not a conversion.7 Thus, if a bailee merely holds over
after the end of the period for which the chattel was bailed to him, he is not
guilty of conversion.8 Similarly, the finder of a chattel lost cannot be sued in
conversion, however, long he keeps it, unless he refuses to give it up or shows
an intention adverse to the owner.9

The detention is adverse only when the plaintiff shows that he demanded the
delivery of the chattel, and the defendant refused or neglected to comply with
the demand.10The demand by the plaintiff must be unconditional, specific and be

_________________________

1. Anandi Lal v. Fateh Ali, (1953) RLW 556; M.V.G. Sastry v. Radhalakshmi, AIR 1953 Mys 273

2. Foulder v. Willonghby, (1841) 8 M&W 540.

3. K.S. & Co. v. National D' Escompt de Paris, (1894) 2 QB 157; See also Hiort v. Bott, (1874) LR 9 Ex 86.

4.AIR 1972 J&K 22; See also Dhan Singh Sobha Singh v. Union of India, MANU/SC/0010/1957 : AIR

1958 SC 274.

5.1875 LR 7 HL 757.

6.Salmond Torts, 20th Edn., p. 102.

7. Caxlon Publishing Co. v. Sutherland Publishing Co., 1939 AC 178.

8. Mitchell v. Ealing L.B.C., 1979 QB 1.

 9. Capital Finance Co. Ltd. v. Bray, (1964) 1 WLR 323.

10. Ibid.

brought to the knowledge of the defendant. 1 However, demand and refusal is

not the sole method by which on adverse detention may be proved. Infact any
conduct of the defendant which shows that he intends to hold a chattel in
defiance of the plaintiff and to deprive him of the possession of them is sufficient
to constitute a conversion even if there is no formal demand.

In M.S. Chokkaligam v. State of Karnataka, the defendants purchased rosewood

logs from the plaintiff and refused to pay for the same for nine years in spite of
repeated demands. The court held that the conduct of the defendants in
retaining the amount to which the petitioner is entitled in spite of repeated
demands, amounts to conversion. Accordingly, the High Court awarded the
value of rosewood logs with interest @ 6% from the date of delivery till payment
was made, and costs of Rs. 2000.

4.3. Conversion by wrongful delivery of goods

A person is guilty of conversion who, without lawful justification, deprives an

owner of his goods by delivering them to someone else so as to change the
possession. An illustration on this point is the case of Hollins v. Fowler 2 where X
obtained Fowler's cotton, and offered it for sale to Hollins, a cotton broker.
Hollins sold and delivered it to M & Co., who converted it into yarn. Hollins took
his commission and gave the proceeds to X, who disappeared. Hollins was held
liable in conversion to Fowler, even though he acted in goodfaith and had
obtained only a broker's commission.

4.4. Conversion by wrongful disposition of goods

A person is guilty of conversion who, without lawful justification, deprives a

person of his goods by giving another a lawful title to them.2 In R.H. Wills &
Sons v. British Car Auctions3, the plaintiffs were motor dealers. They sold a car
priced at £ 625 to one C on hire purchase terms. C initially paid £ 350 and
balance was to be paid later on the condition that C would not sell it to anyone
until the balance price is paid. C, however, sold the car for £ 410 through
auctioneers—the defendants. C became insolvent. The car and the purchasers
were untraceable. The plaintiff sued the defendants for conversion. The court
held the defendants liable for damages amounting to £ 275 i.e., the balance of
the price they had to recover from C.

4.5. Conversion by wrongful destruction of goods

A person is guilty of conversion who, without lawful justification, wilfully

 consumes or destroys a chattel belonging to another person. When an article
loses its identity, it amounts to destruction. For example, grapes are destroyed
when they are turned into wine, eggs are destroyed when an omelette is made.
Cotton is destroyed when yarn is made, corn is destroyed when it is ground into
flour. Thus in Richardson v. Atkinson4, the defendant took some wine out of the

__________________________

1. King v. Walsh, (1932) 1 R 178.

2. Neckram Dobay v. Bank of Bengal, 1891 ILR 19 Cal 322.

3.(1978) 2 All ER 392 (CA).

4.(1723) 1 Stir 576; See also Phillpot v. Kelley, (1835) 3 A&E 106.

plaintiff's cask and mixed water with the remainder to make good the deficiency.
The court held the defendant liable for conversion of the whole cask as he
converted part of the contents by taking them away and the remaining part by
destroying their identity.

4.6. Miscellaneous forms of conversion of goods

A person is guilty of conversion who, in any other way than those mentioned
above, causes the loss of chattel by any act of wilful interference without lawful
justification. Thus, in Moorgate Mercantile Co. v. Finch1, the defendant used the
car of the plaintiff for smuggling. The car was seized and forfeited by the custom
officials. Forfeiture of car was the natural and probable consequence of the
defendants' act. The court held that the defendant was deemed to have intended
the same and as such he was liable for conversion.

In another case of W.E.A. Records Ltd. v. King 2, it was held by the court that an
innocent infringement of copyright amounts to conversion.

There may also be conversion even though the defendant has never been in
physical possession of the goods. In such a case if the defendant has dealt with
the goods in such a manner as to amount to an absolute denial and repudiation
of the plaintiff's rights3, as by stripping a commercial vehicle of its `A' licence, or
refusing to return a log-book.4 But it is now also clear that even an absolute
denial and repudiation of the plaintiff's right, if unaccompanied by circumstances
which make such denial a dealing with the goods, does not constitute
Conversion.5

5. Defence to conversion

Jus Tertii.—This is a defence to an action for conversion. The defendant can plead that
some third party has superior title to that of the plaintiff. But this defence is subject to
certain limitations, which are as follows: (a) where the plaintiff was in possession of the
goods at the time of conversion, the defendant cannot plead jus tertii 6; (b) where the
plaintiff was not in actual possession of goods at the time of conversion, but only a right
to possess, in such a case the defendant can plead jus tertii7; (c) a bailee is estopped
from setting up the title of an owner who does not authorise him to make the claim on
his behalf.8 Similarly, a bailee, if sued by his bailer, is estopped from denying the
bailer's title, although he may have some other defence.

___________________________

1.(1962) All ER 467.

2.(1975) 1 WLR 44.

3. Douglas Valley Finance Co. v. Hughes (Hirers) Ltd., (1969) 1 QB 738.

4. Bryanston Leasing Ltd. v. Principality Finance Ltd., (1977) RTR 45; See also Salmond Torts, 20th Edn.,

(1992), and Seventh Indian Reprint, 2003.

5. See Section 11(3), of Torts (Interference with Goods) Act, 1977, as per Salmond Torts, 20th Edn., p.

107.

6.See Armory v. Delamirie, (1722) 1 Stir 505, discussed supra.

7. Leake v. Loveday, (1842) 4 M&G 972.

8. Rogers v. Lambert, (1891) 1 QB 318.

The other defences are lien, licence, distress damage feasant and retaking of goods.
These defences have already been discussed earlier. However, the right of retaking
gods is in a way the defence of self-help. If B's goods are wrongfully in the possession
of `A', there is no need for B to go to court to recover them. He can retake them
peaceably, if he can by using only so much of force as in necessary to effect his
purpose.1

6. Remedies

Where the defendant is not in possession of the goods at the time of trial, the only
remedy is by way of damages. However, where the defendant is in possession of the
goods at the time of trial there is a further remedy by way of an order for redelivery.
Thus, there are two remedies: (a) Damages and (b) Re-delivery.

6.1. Damages

Where the wrong consist in a simple trespass (without applicable injury) nominal
damages are awarded; but where there is substantial injury (e.g. breaking of
 any thing also) the damages will be assessed according to the value of the torts
or of the plaintiff's non-interest. If the wrong consists in the destruction of the
chattels/goods, the damages will be assessed upon the basis of full value or of
the value of the plaintiff's interest.2 It may be noted that once the plaintiff has
recovered the value his title to the goods becomes extinguished.3

Where the defendant honestly believed that he had good title to the goods,
improves them while in his possession, he is allowed to claim a deduction of the
amount spent for the improvement.4 The same rule applies to bona fide
purchasers and bailees.5

The question is at what point of time the damages should be measured. Is it at

the time of conversion, or at the time when the suit is filed, or at the time of
judgment or at any other moment at the discretion of the judge? In general, the
damages are measured on the basis of market value of the goods at the time of
conversion provided no special damage has been sustained and the goods are
received back after action.6 Thus, in B.B.M.B. Finance (Hongkong) Ltd. v. Eda
Holdings Ltd.7, the defendant unlawfully sold shares of the plaintiff and later
replaced them by equal number of shares purchased at a lower price. It was
held by the Privy Council that the measure of damages was the value of shares
of conversion i.e., sale price minus the value of replacement shares.

______________________

1. See P.S.A. Pillai Law of Tort, 8th Edn., p. 141.

2. Ash v. Duke, (1936) 2 All ER 71; W.E.A. Records Ltd. v. Benson King Ltd., (1974) 3 All ER 81.

3. See Sections 5(1)(a), 5(4), 5(5), 7(3) of Torts (Interference with Goods) Act, 1977.

4.Section 6(1), Torts (Interference with Goods) Act, 1977.

5.Section 6(2), ibid.

6.See Mohammad Mohsin Khan v. Turab Ali Khan, (1909) 6 ALIR 441; Savareddi v. Brahmayya, (1928) 29

MLW 419; Akota Electric Co. v. Gulbai, ILR (1950) Nag 453; Moti Lal v. Lakshmichand, (1943) NILJ 71.

7.(1991) 2 All ER 129 (PC); See also, Hazarimal v. Champalal, ILR 1943 Nag 272; Azmat Ali v. Maula

Baksh, (1885) 5 AWN 200.

Where, however, the defendant does not return the article, the court presumes
the highest value of an article of that kind.1 If the articles or goods have been
returned, but have fallen in price, the defendant has to pay damages on the
basis of difference in the price at the time of demand by the plaintiff and at the
time of return.2
 In Ananantharaman v. Subha Reddi3, the defendant unlawfully dug the land of
the plaintiff, took the soil and made the bricks out of it. The court held that the
plaintiff is entitled to damages not only to the value of the site prejudicially
affected, the cost of manuring and levelling it, but also to the net value of the
bricks into which the soil has been converted.

6.2. Re-delivery

The plaintiff can, by means of detinue, also seek specific return of the goods if it
were in the defendant's possession. Detinue has now been abolished in England
by the Tort (Interference with Goods) Act, 1977, but the rights of the plaintiff
remain much the same as earlier. In such a case, the court may order at its
discretion (a) for delivery of the goods together with payment of any
consequential damages, or (b) an order for the delivery of the goods, but with
an alternative option to the defendant to pay the value of the goods together
with payment of consequential damages, or (c) an order for damages alone.

The courts in India may follow the above law incorporated in the English Act of
1977. Thus in Azmat Ali v. Maula Baksh4, the defendants had wrongfully
converted to their own use a box of indigo which belonged to the plaintiff. The
plaintiff filed a suit for the recovery of the box and damages. The court
measured the damages as follows: the value of the indigo at the time of the
wrongful conversion, minus its value at the date it was to be returned to the
plaintiff, plus interest @ 6% for the intervening period.

7. Difference between Trespass and Conversion

Trespass resembles conversion in the sense that in both the action is based on right of
immediate possession and not right of ownership. The possessor can sue a wrongdoer
unless the latter has a better title to it. But there are following differences between the
two:

(1)If the plaintiff alleges trespass, he needs to prove only of taking of a thing
but if he alleges conversion he need to show that the taking was as adverse
exercise of dominion.

(2)Trespass may include damaging the goods of another without any intention
for adverse possession but conversion is breach made adversely in continuity of
the owner's dominion over the chattel.

________________________

1. Armory v. Delamirie, (1721) 1 Stir 505.

2. Williams v. Arthur, (1847) 5 QB 320; See also Glenwood v. Lumber Co. v. Phillips, 1904 AC 405.
 3.(1951) 2 MLJ 419.

4.(1885) 5 AWN 200; See also British Trading Co. v. Mirza Mohamed Ally, (1878) 5 IA 130; Hasan Kasain

v. Goma Judhavji, (1868) 5 BHC (OCJ) 140.

© Universal law Publishing Co.

   

CHAPTER 12

TORTS RELATING TO INCORPOREAL PERSONAL PROPERTY

SYNOPSIS

1. Introduction

2. Patents

2.1. Meaning

2.2. Rights Conferred

2.3. Remedies for Infringement

3. Copyrights

3.1. Meaning of Copyright

3.2. Infringement of Copyright

3.3. Remedies for Infringement of Copyright

4. Trade Marks

4.1. Meaning of Trade Mark

4.2. Infringement of Trade Mark

4.3. Remedies

4.3. Defences

1. Introduction

Property may be tangible or intangible, corporeal or incorporeal. Coporeal is the object

of the senses and may be seen or touched. Incorporeal property exists in contemplation
of law, and has only as ideal existence. Property rights of an individual cannot be
confined to narrow limits. They vary from property to property and time-to-time,
however they may be conditioned by the actions of individuals of the legislative acts of
the State. Incorporeal property rights is a legal right in property having a conceptual
existence but no physical existence. It is traditionally broken down into two classes: (i)
encumbrances, whether over material on immaterial things being leases, mortgages,
and servitudes; and (ii) full ownership over immaterial thing being patents, copyrights,
and trade marks. Right to action is right to proceed in a court of justice to obtain
redress, be it money or other form of relief, e.g. one may have a cause of action for a
libel or slander, for treaspass, or by reason of an act of negligence.

2. Patents

2.1. Meaning

Patent is a privilege granted to the first inventor of any new manufacture or

invention that he on his licenses shall have the sole right for certain period of
making and vending such manufacture, on invention.

This branch of law has been codified both in India and England and the rights of
such person are protected under the Patents and Designs Act in India, the rights
conferred on a patentee are purely statutory rights and are protected under the
Patent Act, 1970 and the Designs Act, 2000.

2.2. Rights Conferred

A patent granted under the Act shall confer upon the patentee the following
rights:—

(i) Where the subject-matter of the patent is a product, the exclusive

right to prevent third parties, who do not have his consent, from, the act
of making, using, offering for sale, selling on importing for those
purposes that product.

(ii) Where the subject-matter of the patent is a process, the exclusive

right to prevent third parties, who do not have his consent, from the act
of using that process, and from the act of using, offering for sale, selling
or importing for those purposes the product obtained directly by that
process.

2.3. Remedies for Infringement

Infringement of patent means the violation of the monopoly rights granted to

the patentee. The person infringing such rights shall be liable for damage which
a court may grant on any suit for infringement. The patentee is entitled to
damages or injunction or both.
3. Copyrights

3.1. Meaning of Copyright

Copyright is the exclusive right to do or authorise the doing of certain acts in

relation to literary, dramatic or musical work. Computer programme, artistic
work, cinematograph film and sound recording. In India, this right exits in the
Copyright Act, 1957 to protect the owner of the copyright against unauthorized
performance of his work.

3.2. Infringement of Copyright

Copyright is infringed when a person interferes with any right of the owner of
the work without his/her permission. Infringement involves one or more of the
following acts subject to the lists of acts mentioned under section 52 of the Act:
—

(i) reproduction of the work in any material form;

(ii) issue of copy if the work to the public;

(iii) making of any adaptation of the work, copy of the film, translation of
the of work, sound recording of the work, etc.

(iv) publication of the work.

3.3. Remedies for Infringement of Copyright

To claim any relief, plaintiff must prove that he has title in the copyright and
there has been an infringement to it. For infringement of copyright, remedy is
available under the Copyright Act, 1957.

4. Trade Marks

4.1. Meaning of Trade Mark

A trade mark means a mark used in relation to goods for the purpose of indicating or so
as to indicate a connection in the course of trade between the goods and some person
having the right as proprietor to use that mark.1 According to section 2(b) trade mark
means a mark capable of being represented graphically and which is capable of
distinguishing the goods on services of one person from those of others and may
include shape of goods, their packaging and combination of colours; and—

(i) in relation to section 101 to section 121 other than section 107, a registered
trade mark or a mark used in relation to goods or a services for the purpose of
indicating or so as to indicate a connection in the cause of trade between the
goods or services, as the case may be, and some person having the right is
 proprietor to use the mark; and

(ii) in relation to other provisions of the Act, a mark used or proposed to be used
in relation to goods or services for the purpose of indicating or so to indicate a
connection in the course of trade between the goods on services, as the case
may be, and some person having the right, either as proprietor or by way of
permitted user, to use the mark whether with or without any indication of the
identity of that person, and includes a certification trade mark on collective
mark.

4.2. Infringement of Trade Mark

Use of trade mark gives a title to the owner of the trade mark and the owner is
entitled to its exclusive use and can sue for infringement when other using such
mark deceives or is reasonably likely to deceive the public.

4.3. Remedies

Provisions for action for infringement is given in the Trade Marks Act, 1999. A
suit for infringement of the mark or for passing off is to be instituted in court not
inferior to the District Court having jurisdiction to try the suit.

In an action for infringement the plaintiff has to prove that

(i) the defendant has used a similar mark to the plaintiff's mark;

(ii) there is a reasonable probability that public is being deceived.

4.3. Defences

(i) Denial of Plaintiff's title

(ii) Non-registration of the mark

(iii) Denial of infringement as a fact

(iv) Estoppel of Plaintiff

(v) Acquiescence of plaintiff.

________________________

1. Sumat Prasad v. Sheojanan Prasad, MANU/SC/0413/1972 : AIR 1972 SC 2488.

© Universal law Publishing Co.

    

CHAPTER 13

Torts Affecting Domestic & Service Relationship

Synopsis

1. Introduction

2. Husband & Wife

2.1. Enticement

2.2. Adultery

2.3. Action for personal injuries

3. Parents and Children

4. Master and Servant

1. Introduction

Wrongs to family relationship may conveniently be divided into three categories:

1. Husband & Wife

2. Parents & Children

3. Master & Servant

2. Husband & Wife

This category deals with the wrongs affecting the husband's rights in respect of his wife
and vice versa.

2.1. Enticement

An action for enticing away the wife is maintainable in India as well as in England.

A husband has a right against a third party for the loss of society or service of his
wife.1 Any tortious act, therefore, committed against the wife is maintainable by her
husband, if he can prove that thereby he was deprived for any period, of her society or
services. It was so laid down in the case of Winsmore v. Greenbank2 where a husband
was successful in maintaining an action against a person who had enticed away his wife
so that the plaintiff "lost the

___________________________
 1. Sobharam v. Tika Ram, (1936) 58 All 903; Muhammed Ibrahim v. Gulam Ahmad, (1864) 1 BHC 236.

2. 1745 Willes 577.

comfort and society of his wife". The court held that there must be damnum cum injuria
and it found that damnum consisted in the loss of consortium.

Another important case on this point is of Place v. Searle1 where the above case was
followed by the Court of Appeal.

The plaintiff brought an action alleging that the defendant, who was on terms of
intimacy with the plaintiff's wife for six years, persuaded his wife to leave him after a
quarrel between the plaintiff and his wife by telling her "come on, Gwen, we will go" and
they left the plaintiff's house. Scrutton, L.J. said:

"It seems to me clear, at the present day, that a husband has a right to the
consortium of his wife, and the wife, to the consortium of her husband and that
either has a cause of action against a third party who without justification
destroys that consortium. It is the duty of the wife to reside and consort with
her husband. This is the duty which she owes to him and a person who tempts
or entices her to violate this duty commits a wrong towards the husband for
which he is entitled to recover damages, unless the person who harboured her
acted from `principles of humanity', to protect her from her husband's ill
treatment, in which no action can be maintained, even though it should turn out
that the wife's allegation was unfounded."

Similarly, in India in the case of Sobharam v. Tika Ram2 it was held by the court that to
entice away a wife is an infringement of the husband's right under the contract of
marriage and as such it gives rise to a cause of action for damages against the
defendant. But an action lies only when the defendant without lawful excuse entices
away or persuades a wife not to return to her husband's house—Mohammed Ibrahim v.
Gulam Ahmed.3

2.2. Adultery

If a man commits adultery with another's wife, it is a wrong against her

husband. In England, the husband's claim for damages is now governed under
the provisions of the Matrimonial Causes Act, 1950.4 Even if the wife had
consented to sexual intercourse, yet in law she is presumed to be incapable of
giving such consent. Her consent, therefore, is immaterial in the case of
adultery. Where, however, an adulterer does not know that the woman is
married, in that case, in strict law such ignorance is no bar to damages and the
damages will be awarded inspite of it. It was so held in Butterworth v.
Butterworth5. But this case has not been followed in India by the Nagpur High
Court6 where it was held that the defendant's ignorance that the woman was
 married is a good defence unless there is some special reason.

___________________________

1. (1932) 2 KB 497.

2. (1936) 58 All 903.

3. (1864) 1 BHC 236. The wife has also got the right in case her husband has been enticed away by

another woman: See Gray v. Gee, (1923) 39 TLR 429.

4. In India under r. 9 read with other provisions under the Hindu Marriage Act, 1955, damages may be

claimed against the alleged adulter (corespondent) in the petition of divorce filed by the husband against

his wife: Rajalingam v. Lingaiah, (1964) 1 ALT 391.

5. 1920, p. 126.

6. Abdul Samad v. Mohammad Ramzan, 1949 Nag 346.

It may be pointed out that where the husband has already obtained damages for
the enticement of wife from another man with whom the wife also committed
adultery, the husband is permitted to maintain a fresh action for the award of
damages for adultery also.1

However, a wife cannot bring an action for damages solely in respect of adultery
committed with her husband. She also cannot sue a third person for harbouring
her husband.2

2.3. Action for personal injuries

A husband can bring an action for physical injury caused to his wife. The wife as
well as her husband can each bring an action. The wife can sue for the injury
caused to her and the husband for the loss of her society 3 and service. These
two actions may be brought separately or jointly. But the wife cannot bring an
action against a person who injures her husband by a negligent act or omission,
for the loss of consortium consequential on injury.4

3. Parents and Children

This category deals with the wrongs affecting the parent's rights in respect of his or her
children.

Parental rights.—A parent has a right to the custody, control and services of his or her
children till they arrive at the age of twenty-one in England and eighteen in India.
Children over this age are not within this rule unless they render actual service to the
parents. Thus, all rights vested in the parents in respect of the child are based on the
analogy of master and servant. A parent will, therefore, have a cause of action in tort
only when it is proved that the parent lost the services of his child. If this relation of
master and servant does not exist between parent and child, the parent cannot claim
any damage for the wrong done to him in respect of his child. For example, where the
child is too young to render any service,5 or, where the child is already in service of
another person, or, for any other reason, the parent cannot maintain any action in tort.
Thus, no action can be maintained by a parent only on the ground of seduction or
enticement of a child. But where the seduction or enticement results in the loss

______________________________

1. Menon v. Menon & Warth, 1936, p. 200.

2. Winchester v. Fleming, (1958) 1 QB 259.

3. Brockbank v. Whitehaven Jun. Ry. Co., (1862) 7 H&N 834; See also Maillett v. Dunn, (1949) 2 KB 180,

where the husband recovered damages in full, even though his wife's own damages were reduced by her

contributory negligence. In that case a husband and a wife sued for damages for injury resulting from her

being knocked down by the defendant's car while she was walking along a lane; Lamport v. E.N.O. Co.,

(1954) 2 All ER 719; Lawrence v. Biddle, (1966) 1 All ER 575. This case was followed in Cutts v. Chumley,

(1967) 2 All ER 89.

4. Best v. Samuel Fox & Co. Ltd., 1952 AC 716, where the (wife) plaintiff brought an action in the court

against the defendants, for causing injury to her husband. On account of injuries the husband became

incapable of sexual intercourse, and, in consequence the plaintiff suffered in health. The plaintiff claimed

damages for loss of her husband's consortium in that she was deprived of the opportunity of having further

children and of normal marital relations. The court held that there was no principle or authority in English

Law on which such action could be founded and the plaintiff was not entitled to succeed. See also Enridge

v. Copp, (1966) 57 DLR 239.

5. Hall v. Hollander, (1925) 4 B&C 660.

of services of the child to the parents, the parents can maintain an action
for damages.1 An Indian case on this point is of Ram Lal v. Tula Ram.2

In this case a married woman was deserted by her husband, and, at the time of
abduction by the defendant, was living with her father. Father, a Hindu, therefore, sued
for compensation for the loss of his daughter's services in consequence of her abduction
by the defendant and for the cost incurred by him in successfully prosecuting the
defendant criminally for such abduction. Stuart C.J. held that the suit by the father for
compensation for the loss of his daughter's services in consequence of her abduction
was under the circumstances maintainable.

But where the father has sued for seduction of his daughter, the right to sue does not
survive the father and the suit abates. It cannot be continued by any other member of
the family. However, the seduced daughter can maintain an action for any other tort
such as assault, false imprisonment, deceit etc.3

4. Master and Servant

This category includes the wrongs affecting the master's right in respect of his servants.

Master's rights.—A master can bring an action against a person who

entices,4 harbours,5 injures,6 imprisons or takes away by force his servant, and thereby
causes loss of service to the master. The cause of action is the loss of service, which the
master must prove. If the servant left his master in breach of his contract, the person
who employs him will be liable for harbouring but only when the servant goes back to
his first master. And if he does not go back to his first Master, then there is no cause of
action. The reason for the rule is that no damage by loss of service has resulted from
the second employment.7 A master can also sue a person who seduced his female
servant. But it is necessary that the relationship of the master and the servant must
have existed both at the time of seduction and at the time of the illness causing the loss
of service. In the case of seduction of female servant, master must prove that (a) the
contractual service of some kind was done by the servant at the time of seduction, (b)
the servant was incapacitated from rendering service in consequence of the seduction,
and (c) the master suffered special damage by reason of the injury inflicted on the
servant.

_____________________________

1. Grinnel v. Wells, (1884) 7 M&G 1034, where it was held that "the foundation of the action by a father to

recover damages against the wrongdoer for the seduction of his daughter has been uniformly placed from

the earliest time hitherto not upon the seduction itself which is the wrongful act of the defendant; but upon

the loss of services of the daughter in which service he is supposed to have a legal right or interest.

2. (1881) 4 All 97.

3. Baboo v. Subhanshi, AIR Nag 99; See also Mohanimad Ibrahim v. Ghulam Ahmad, (1864) 1 Bom HC
236; Tika Ram v. Sobha Ram, MANU/UP/0433/1935 : AIR 1935 All 855; Brajencra v. Luffemen,

(1909) 13 CWN 485.

4. However, the action for enticement is now practically superseded by the modern action for procuring a

breach of contract.

5. Bradford Corp. v. Webster, (1920) 2 KB 135; Mankin v. ST. Co., 1974 KB 257.

6. It has been held in England (and also true in India) that the crown cannot sue for damages for loss of

service of a public servant injured by the negligence of the defendant, See A.G. for N.S. Wales v. Perpetual

Trustees Co. Ltd., 1955 AC 457; Receiver for the Metropolitan District v. Croydon Corporation, (1957) 2 QB

134; Inland Revenue Commissioners v. Hambrook, (1956) 3 All BR 338 CA; Lee v. Sheard, (1955) 2 All ER

777 CA.
 7. Jones Bros. v. Stevens, (1955) 1 QB 275.

© Universal law Publishing Co.

   

CHAPTER 14

Negligence

SYNOPSIS

1. Introduction

2. Meaning

3. Essential ingredients

4. Burden of proof in an action for negligence

5. Defences for negligence

6. The maxim: Res ipsa loquitur

7. Consequent damage

8. Negligence: Legal profession

9. Negligence: Medical profession

9.1. Doctor's duty to attend the patient

9.2. Duty of care towards the patient

9.3. Doctor's duty and secrecy

9.4. English law

1. Introduction

Negligence implies absence of intention to cause the harm complained of. It means
careless or unreasonable conduct. But merely unreasonable conduct without damage is
not actionable though it may be a punishable offence. Such conduct when followed by
harm to another gives rise to liability for negligence. It may be pointed out that
negligence may mean a mental element in tortious liability or it may mean an
independent tort. But we are here concerned with the negligence as an independent
tort.1

Negligence has been recognized as independent tort by the House of Lords in the case
of Donoghue v. Stevenson2 in 1932. This case treats negligence as a type of conduct
and not a particular state of mind. The tort of negligence is, therefore, complex and
fluid because in determining the liability in negligence, issues like duty. Care, causation,
remoteness of damage are to be analysed in any given case.

____________________________

1. There are two theories about the negligence in the law of tort:

(a) Subjective theory, and (b) Objective theory. According to Subjective theory, negligence

denotes `state of mind' but according to Objective theory it is a type of conduct and not a

particular state of mind. This theory treats negligence as a specific tort and sets at rest all the

controversy over this point. The Objective theory has also been recognised by the House of Lords

in Donoghue v. Stevenson, where negligence has been treated as a specific tort. However first

theory i.e., Subjective theory has been supported by Austin, Salmond and even Winfield.

2. 1932 AC 562.

2. Meaning

According to Swayne J. of the United States, "Negligence is the failure to do what a

reasonable and prudent person would ordinarily have done under the circumstances of
the situation."1

According to Winfield, "Negligence as a tort is the breach of a legal duty to take care
which results in damage, undesired by the defendant, to the plaintiff".2

From the above definitions it appears that there are three essential ingredients in
constituting a negligent tort.

3. Essential ingredients

(a) That the defendant was under a legal duty to take reasonable care towards
the plaintiff to avoid the damage complained of;

(b) That the defendant committed a breach of that duty;

(c) That due to the breach of duty plaintiff suffered damage.

Thus, the most important requisite in establishing negligence is to show that there
exists some legal duty to take care and it must be towards the plaintiff. In the absence
of such legal duty, negligence in the popular sense has no legal consequences. The duty
to take care is not in the air but towards particular person.3 Secondly, if the duty to take
care exists then there must be a breach of that duty committed by a reasonable &
prudent person (i.e. defendant) and not by any other person. Thirdly, if both the points
are present then the damage must have been legally caused by the defendants breach
of duty and not by any other cause. All these points duty to take care, breach of duty
and consequent damage, have been discussed in detail as under.

Duty to take care.—Duty may mean some obligation or it may mean that there is
some limitation or restriction on the conduct of a person that he would behave in such a
manner as a reasonable person would have behaved in like circumstances. When a
person does not behave like a reasonable and prudent person, he is said to be careless.
But it is not for every careless act that a man may be held responsible in law, nor even
for every careless act that causes damage. He will only be liable for careless act if he is
under a legal duty to take care towards the particular person.4

Criterion of duty.-The important question is that how a judge determines whether

there is, or is not a duty? His task becomes easy where the legislature or earlier
decision have established the duty. But what a judge would do if there is no precedent
exactly in point? Is there any general principle by which the existence of a particular
notional duty can be logically determined? The first attempt to formulate a principle was
made by Brett MR. in Heaven v. Pender.5 In this case it was established that under
certain circumstances, one man may owe a duty to another, even though there is no
contract between them. "One man is near to another, or is near to the property of
another, a duty lies upon him not

_______________________

1. Balt & Potomac v. Jones, (1877) 95 VS 506.

2. Winfield on Tort, p. 42.

3. Thomas v. Quartermaine, (1887) 18 QBD 685.

4. It may be pointed out here that duty is not confined to the law of negligence and that it is an element in

every tort, because there is a legal duty not to commit nuisance or defamation or assault or battery and so

forth. But all that duty signifies in the aforesaid torts is that you must not commit them. It throws no light

on their essential elements.

5. (1883) 11 QBD 509.

to do that which may cause a personal injury to that other, or may injure his property."
Thus, the decision of Heaven v. Pender was founded upon the principle, that a duty to
take due care did arise when the person or property of one was in such proximity to the
person or property of another that, if due care was not taken, damage might be done
by the one to the other.1

This case was almost approved by the House of Lords in Donoghue v. Stevenson2,
where Lord Atkin laid down a very important principle of determining a duty.

The facts briefly were that the defendant, a manufacturer of gingerbeer, had sold to a
retailer a sealed and opaque bottle of ginger-beer. The retailer sold it to A who had
given it to his friend Miss Donoghue. She drank the gingerbeer. The bottle contained the
decomposed remains of a snail which were not, and could not be, detected until the
greater part of contents of the bottle had been consumed. As a result she alleged that
she became seriously ill in consequence and sued the manufacturer for negligence.

It may be noted here that there was no contract between the plaintiff and the
defendant. In the absence of any contractual duty, the House of Lords had to determine
whether he had a duty of care towards the plaintiff? Lord Atkin delivered the judgment
of the majority and laid down the rule of determining the duty. He said:

"The liability for negligence is no doubt based upon a general public sentiment of
moral wrong doing for which the offender must pay. But acts or omissions which
any moral code would censure cannot in a practical world be treated so as to
give a right to every person injured by them to demand relief. In this way rules
of law arise which limit the range of complainants and the extent of their remedy
The rule that you are to love your neighbour becomes, in law, you must not
injure your neighbour; and the lawyer's question, `who is my neighbour?'
receives a restricted reply. You must take reasonable care to avoid acts or
omission which you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law is my neighbour? The answer seems to be persons
who are so closely and directly affected by my act that I ought reasonably to
have them in contemplation as being so affected when I am directing my mind
to the acts or omissions which are called in question.3

After laying down the principle of notional duty, Lord Atkin then stated that under what
circumstances a manufacturer owes a duty of care towards the consumer. He said:

"...a manufacturer of products, which he sells in such a form as to show that he

intends them to reach the ultimate consumer in the form in which they left him
with no reasonable possibility of intermediate examination, and with the
knowledge that the absence of reasonable care in the preparation or putting up
of the products will result in an injury to the consumer's life or property, owes a
duty to the consumer to take that reasonable care."

Thus, in this case the House of Lords held that although there was no contractual duty
on the part of the defendant, but the defendant owed her a duty

_________________________________

1. Le Liever v. Gould, (1893) 1 QB 491.

 2. 1932 AC 562.

3. 1932 AC 585.

to take care that the bottle did not contain noxious matter and that he would be liable if
that duty was broken. This case was followed by the Judicial Committee of the Privy
Council in 1935 in Grant v. Australian Knitting Mills Ltd. 1 and also in India 2. Donoghue
case is very important because it got rid of the law of the contract fallacy and provided
authority for the proposition that a notional duty is owed independently of contract by a
manufacturer to the ultimate consumer of his product. Although Lord Atkin's statement
of principle has been generally accepted as a broad proposition, it cannot be accepted
as a universal rule for decision. It is to be applied subject to qualifications. Let us,
therefore, analyse the principle laid down in the case of Donoghue v. Stevenson.

Acts or Omissions.—Lord Atkin has stated that "you must take reasonable care to avoid
acts or omissions which you can reasonably foresee would be likely to injure your
neighbour." It is one thing that a person acts carelessly and creates a danger or harm
to another. In such a case he owes a duty of care to another if he can reasonably
foresee that another is likely to be injured. For example, negligent driving. But what
would happen in the case of omission? There is no general duty of any one to act
positively for the benefit of others. For example, a stranger who stands by and watches
a child drowning in four feet of water. Here the stranger is not accountable for
negligence although he has omitted to do what the reasonable man would do to his
neighbour. The principle of omission, therefore, does not apply in such kind of cases.
Actually, there is in general no positive duty on the defendant to prevent damage to the
plaintiff which has been created by another. It is at this point that the neighbour rule
takes no account of the distinction between acting carelessly to create harm to another
and failing to prevent harm to another. But what would happen if one of two adjoining
shopkeepers sells his good at such reduced rates that customers cease to resort to the
other shop? Has the latter any cause of action although the two are neighbours under
Donoghue's rule? We do not get the answer from the neighbour rule. It is here the
neighbour rule does not work satisfactorily. Perhaps it depends upon policy rather than
law.3 It can only be said that where a precise situation is not already covered by
authority, the judge has to make a creative

___________________________

1. The plaintiff purchased woolen garment from a retailer which was manufactured by the defendant. He

contracted dermatitis as a result of wearing woolen garment because of the presence of excess sulphites

which, it was found, had been negligently left in the cloth in the process of manufacture. The presence of

the chemical was a hidden and latent defect and could not be detected by any examination that could

reasonably be made. It was held by the Privy Council that under the circumstances the defendants owed a

duty of care towards the plaintiff even though there was no contractual relationship.
 2. Manindra Nath Mukerjee v. Mathuradass Chaturbhuj, AIR 1946 Cal 175 where it was observed by the

court that negligence as a tort is the breach of a legal duty on the part of A to take care which results in

damage to his neighbour. The neighbours are those persons who are closely and directly affected by the

conduct of defendant that he ought reasonably to have them in contemplation as being so affected when he

is directing his mind to the acts or omission which are called in question. See also, Babu Singh v. Champa
Devi, MANU/UP/0017/1974 : AIR 1974 All 90; Bhagwati Prasad v.

Chandramani, MANU/SC/0335/1965 : AIR 1966 SC 735; Ishwari Devi v. Union of India; J. Lal v.

P.C.H. Reddy, MANU/RH/0061/1975 : AIR 1975 Raj 232; Sushma Mitra v. M.P.S.R.T. Corp., AIR

1974 MP 68; Y.S. Kumar v. K.S. Jaspal, AIR 1972 P&H 326; Dhangauriben v. M. Mulchand
Bhai, MANU/GJ/0137/1981 : AIR 1981 Guj 264; Municipal Board v. B. Kishor, AIR 1978 All 168;

Ram Dass & Sons v. B.P. Singh, MANU/BH/0102/1973 : AIR 1973 Pat 294; Mata Prasad v. Union of

India, MANU/UP/0078/1978 : AIR 1978 All 303; P.I.C. Mills v. Union of India, AIR 1980 (168).

3. Keeble v. Hickeringill, (1705) 11 East 574; Mogul Steamship Co. v. McGregor, Gow & Co. Ltd., (1889) 28

ABD 598.

choice of holding for the plaintiff under neighbour rule (i.e., Lord Atkin's test), or for the
defendant under some exception, or for some other reason must make a creative
decision whether to raise or not to raise a duty. "The factors which guide the judge in
this creative process can only be put broadly as the application of theories of justice to
negligence cases by adjusting the relative values of the conflicting interests involved."
How wide the sphere of the duty of care in negligence is to be laid depends ultimately
upon the court's assessment of the demands of society for protection from the
carelessness of others."1 However, in case we find that a duty of care exists on the part
of the defendant, then we have to determine the second ingredient of negligence i.e.,
whether the defendant has committed a breach of that duty.

Breach of duty.—If a person owes a duty of care and commits a breach of that duty,
he is said to have committed negligence. Does it mean that a man should act like a
super human and whenever he commits a breach of duty, he is negligent? Is there any
criterion or standard by which it can be determined? Stating more precisely, what
standard and degree of care is required on the part of a person? It has been said that a
person is neither expected to act like a super human nor like an insane or unreasonable
and imprudent person. The law therefore requires that standard and degree of care on
the part of a person which should have been taken by a reasonable and prudent person
in the like circumstances. Though standard is uniform, the degree of care is not, which
varies in different situations. In fact the degree of care required varies directly with the
risk involved.2The greater the risk, the greater the care. For instance, a driver of a car
requires greater skill and care than a driver of a carriage and horse3, or, a driver of a
vehicle should take greater care when it is raining or drizzling.4 A person carrying a
loaded gun is expected take more precautions than a person carrying on unloaded gun.
Similarly, while transporting petrol or diesel, greater care is needed than in transporting
water. The degree of risk varies in difficult situations also. If a road is crowded or
narrow or zigzag, the speed of 30 km. will be high, as the vehicle cannot be controlled
in such a situation.5 In Surendra Shetty v. Sanjiva Rao6, it has been held that when the
driver is in a school zone, there is greater responsibility on the driver to see that the
speed of his vehicle is so controlled as to be able to stop it within a moment's notice.
Similarly, in Shivkar v.Ramnaresh7, the Headmaster of a municipal school permitted 60
boys alongwith two teachers to go for a picnic to a spot situated on the bank of river
Sabarmati. While two teachers were taking their food, they heard noise from the
riverside and rushed there to find that two boys in the river water had been rescued
while the fishermen recovered the dead body of Jagpal

______________________

1. Winfield on Tort, 8th Edn., pp. 5253.

2. Glangous Corp. v. Muir, 1943 AC 448; M.S.R.T. Corp. v. Albert Disa, AIR 1973 Mys 240.

3. Merone v. Riding, (1938) 1 ER 157.

4. Satyamati Devi v. Union of India, AIR 1967 Del 98.

5. State of M.P. v. Asha Devi, MANU/MP/0019/1989 : AIR 1989 MP 93; Champalal Jain v. B.P.

Venkataraman, MANU/TN/0233/1966 : AIR 1966 Mad 466 where speed of 20 km. was considered

high; Bishwanath Gupta v. Munna, 1971 MPLJ 721; whose speed of 12 km. was considered high when

children were playing on the road, or school zone area. See also, Surendra Shetty v. Sanjiva
Rao,MANU/KA/0116/1982 : AIR 1982 Kant 84; Pandian Roadways Corp. v.

Karunanidhi, MANU/TN/0267/1982 : AIR 1982 Mad 104.

6. Surendra Shetty v. Sanjiva Rao, MANU/KA/0116/1982 : AIR 1982 Kant 84.

7. MANU/GJ/0060/1978 : AIR 1978 Guj 115.

Singh aged 12 years. In an action by the mother, it was said by the court that to a
young urchin such as Jagpal, river water was an allurement as well as a trap. Due to
monsoon season, river water had a deep current. Under the circumstances, a greater
care was necessary. The two teachers should not have started taking food together.
While one should have taken the food, the other should have supervised the young
boys. Thus, teachers failed to take due care and were held liable. The Municipal
Corporation was also held vicariously liable.1

An engineer carrying out works on a highway would be expected to show a special

degree of care for the protection of a blind man using the highway, while a different
degree of care may suffice for others.2 A jeweller piercing the ear is not expected to act
like a surgeon.3 The Supreme Court in Dr. Laxman Balkrishna Joshi v. Trimbak4 has
stated that a surgeon is expected to show the care and skill not of an ordinary layman
but of a member of his class. "A person who holds himself out ready to give medical
advice and treatment impliedly undertakes that he is possessed of skill and knowledge
for the purpose. Such a person when consulted by a patient owes him certain duties
viz., a duty of care in deciding whether to undertake the care; a duty of care in deciding
what treatment to give or a duty of care in the administration of that treatment. A
breach of any of those duties gives a right of action for negligence to the patient. The
practitioner must bring to his task a reasonable degree of skill and knowledge and must
exercise reasonable degree of care. Neither a very high nor a very low degree of care
and competence judged in the light of particular circumstances of each case, is what the
law requires. In other words, where skilled work is undertaken, want of skill is
negligence in law. The standard of knowledge and care differs in different time. We
should not look at the 1946 accident with 1976 spectacles. So much is for the standard
and degree of care which a person is expected to perform like a reasonable and prudent
person of his time or as a member of his class.

Extension of the rule.—The principle of Donoghue v. Stevenson has been extended to

other persons, who have done something active to create the danger, viz., repairers5,
fitters6, erectors7 and assemblers.8 Thus, in Malfroot v. Noxal Ltd., 9 the husband owned
a motor cycle and he had employed the

__________________________

1. See also, Haley v. London Electricity Board, (1964) 2 All ER 158: 1965 AC 778. If you expect a blind

person you should take extra reasonable care to protect him also; Xavier v. State of Tamil
Nadu,MANU/TN/0043/1994 : AIR 1994 Mad 306; Paris v. Stepney Borough Council, 1951 AC 397;

State of Bihar v. S.K. Mukherji, MANU/BH/0010/1976 : AIR 1976 Pat 24, where it was held that Kosi

river was famous for furious and turbid current and not providing life saving device in the boat amounted to

negligence; See also, Klaus Mittelbachert v. East India Hotels Ltd., AIR 1997 Del 201, where it was held

that a 5-Star Hotel charging high price from its customers owes a high degree of care as regards, quality,

safety and services.

2. Haley v. London Electricity Board, 1965 AC 778; Xavier v. Tamil Nadu, MANU/TN/0043/1994 :

AIR 1994 Mad 306.

3. Phillips v. William Whitely, 1938 AER 566.

4. MANU/SC/0362/1968 : AIR 1969 SC 128; See also, Mohan v. Osborne, (1939) 2 KB 14.

5. Malfroot v. Noval Ltd., (1935) 51 TLR 551; Stennett v. Hancock, (1939) 2 All ER 578; Haseline v. Daw,

(1941) 2 KB 343.

6. Malfroot v. Noxal Ltd., cit. ibid.

7. Brown v. Cotterill, (1934) 51 TLR 21.

8. Howard v. Furness Houlder Ltd., (1936) 2 All ER (Value bridges re-assembled upside down.)
 9. Cit., ibid.

defendants to fit a side car to it. After the side car was fitted, the husband was driving
the combination with his wife, when the side car broke loose and they were both
injured. The court held that both plaintiffs could recover damages on the ground that if
a fitter (contractor) knows that his work, if negligently done, may expose others besides
his contracting party to danger, and that it will be used without intermediate
examination or test, he is under a duty to those persons. In Haseldine v. CA. Daw &
Sons Ltd.,1 where a repairer had failed to keep a lift in condition although under a
contract to a third party to do so, was held liable on the ground that he owes a duty to
any person by whom that article, repaired by him, is expected to be lawfully used. In
Burfit v. A & E Kille,2 a seller of firearms who sold a pistol to a child was held liable
when that child injured another child by shooting at him. Similarly, the rate payers can
recover damage resulting from an infected water supply.

The Donoghue's rule thus includes only those persons who have done something active
to create the danger. But should it include suppliers, i.e., vendors, bailors and donors of
chattels who are unaware of the defect and have done nothing active to create or
contribute to the defect or danger, for such persons can not reasonably have foreseen
that there was risk of injury to the ultimate user? Apparently, Donoghue's rule does not
apply in such kind of cases. However, the modern tendency of the courts is to include
suppliers who should, in certain circumstances, make inquiries or carry out some
inspection of the chattel, and if it is dangerous for some reason which the supplier
should have known, his failure to warn of it will amount to negligence.

4. Burden of proof in an action for negligence

The general rule is that in an action of negligence the burden of proof is on the person
who complains of negligence. He must show that he was injured by an act or omission
for which the defendant is liable. There must be proof of some duty owed by the
defendant, breach of that duty and consequent damage suffered by the plaintiff. Further
the act or omission must be the proximate cause of damage to the plaintiff. Where the
balance is even as to which part is in fault, the one who relies on the negligence of
other is bound to turn the scale. The initial burden of making out a prima facie case of
negligence against the defendant lies heavily on the plaintiff and once this onus is
discharged, it will be for the defendant to prove contributory negligence or that the
incident was the result of inevitable accident.3

5. Defences for negligence

Most of the defences depend upon conditions which in general negative tortuous
liability4, viz., volenti non fit injuria, private defence, statutory authority, act of State,
remoteness of damage5 etc. However, some of them are mentioned below:
 (a) Contributory negligence

(b) Vis major or act of God

________________________________

1. Cit., ibid.

2. (1939) 1 KB 21.

3. K.C. Kumaran v. Vallabhadas Vasanji, MANU/KE/0003/1969 : AIR 1969 Ker 9.

4. See Chapter 5, supra.

5. See Chapter 6, supra.

(c) Inevitable accident.

(a) Contributory negligence—It has been dealt with in separate chapter.

Contributory negligence is negligence in not avoiding the consequence arising
from the negligence of some other person, when means and opportunity are
afforded to do so. When the plaintiff fails in exercising ordinary care, diligence,
and skill to avoid the consequences of defendant's negligence he cannot claim
damages1. It is based on the maxims- volenti non fit injuria 2 and in jure non
remota causa sed proxima spectatur3. Wherever the immediate, proximate and
decisive cause of the damage is the plaintiff's own negligence or want of
ordinary care and caution on his part, the misfortune would not have happened,
he is not entitled to recover. Thus, a man hanging on the footboard and keeping
his hand outside the window of moving bus, knowing the risk only invites the
injury and thus cannot claim damages.

(b) Vis Major or Act of God—Vis major (or Act of God) is such a direct, violent,
sudden and irresistible act of nature as could not, by any amount of human
foresight, have been foreseen or if foreseen, could not by any amount of human
care and skill, have been resisted4. Thus acts which are occasioned by the
elementary forces of nature, unconnected with the agency of man or other cause
will come under the category of Acts of God e.g. storm, tempest, lightning,
extraordinary rain etc. The defence of vis major must be the cause causans and
not merely cause sine qua non of the damage complained of. It is not necessary
that it should be unique, that it should happen for the first time; it is enough
that it is extraordinary, which could not reasonably be anticipated. The mere fact
that vis major co-existed or followed on negligence is no adequate defence. The
defendant must himself have done all that he is bound to do before an Act of
God is admitted as an excuse. In Nichols v. Marsland5, the defendant had
various artificial lakes on his land which he had maintained with full care. Due to
 most unusual fall of rain, so great that it could not have been reasonably
anticipated some of the reservoirs burst and carried away some country barges.
The defendant was held not liable as the escape of water was an Act of God.

(c) Inevitable accident—This is also one of the defence in an action for

negligence6 (see Chapter 5). A was lying drunk on a roadway. B approached in a
motor-car round a bend in the road, but before he reached the point at which,
under ordinary circumstances, he would first see A, a sheet of newspaper was
blown by the wind against the windscreen and materially obscured his view. He
ran over A and injured him. A was not able to succeed as it was a case of
inevitable accident.

6. The maxim:Res ipsa loquitur

The rule that it is for the plaintiff to prove negligence of the defendant may cause
hardship to the plaintiff if it is impossible for him to know what precise acts or omissions
led to his injury or damage, and this is most obviously so

__________________________

1. See also Chapter 14, infra.

2. See also maxim `volenti non fit injuria' in Chapter 5, supra.

3. See also maxim `in jure non remota causa sed proxima spectatur' in Chapter 6.

4. Nugent v. Smith, (1876) 1 CPD 19.

5. 1875 LR 10 Ex 225.

6. Also see Chapter 5.

where the cause of the damage is peculiarly within the means of knowledge of the
defendant who caused it. In these circumstances this hardship can be avoided by the
application of the maxim `Res ipsa loquitur'. The maxim is not a principle of liability but
a rule of evidence. It means that the things speak for itself, i.e., the facts and
circumstances which the plaintiff has proved establish a prima facie case of negligence
against the defendant. The requirement is that mere happening of the accident should
tell its own story and raise the inference of negligence on the part of the defendant. For
instance, where a person going along a highway was injured by the fall of a barrel from
out of the window of the defendant's warehouse1, or by the fall of a stone from the
defendant's premises2, or where an employee was killed by an explosion of the gas
apparatus in the defendant's factory3, or where a motor car injured a person on the
footpath beside a road4 or where a surgeon left a towel inside the stomach of a patient
after an operation.5 In all these cases the maxim `res ipsa loquitur' applies, for, the
mere fact of the accident tells its own story and raises the inference of negligence
against the defendant. But the story must be clear and unambiguous. Winfield, after
quoting the famous statement of Earl C.J., in the case of Scott v. London and St.
Katherine Docks Co.6, stated that there are two requirements for applying the maxim
res ipsa loquitur: (a) that the thing causing the damage be under the control of the
defendant or his servants, and (b) that the accident must be such as would not in the
ordinary course of things have happened without negligence.'7

The thing causing the damage must be under the control of the defendant or
his servant.—The first requirement is that the happening of the accident must be
evidence of negligence on the part of the defendant or of someone for whose negligence
he is responsible. A mere right to control, as opposed to actual control, is sufficient. 8 It
is not always necessary that all the circumstances be under the defendant's
control.9 But if the events leading up to the accident were

______________________________

1. Byrne v. Boadle, (1863) 2 H&C 732; See also, Manindra Nath v. Mathura Das, 1946 Cal 175, where a

cinema banner fell from the defendant's premises and injured the plaintiff on the road.

2. Kearney v. L.B. Rly Co., (1870) 5 QB 41; See also, Kallu Lal v. Hemchand, 1957 MPLJ 532 (fall of a

wall).

3. Moore v. Fox & Sons, (1956) 1 All ER 182 CA; See also, Colillies Ltd. v. Devine, (1969) 22 All ER 53.

4. Ellor v. Selfridge, (1930) 46 TLR 236; See also, State of Rajasthan v.

Vidyawati, MANU/SC/0025/1962 : AIR 1962 SC 933.

5. Mohan v. Osborne, (1939) 2 KB 14.

6. (1865) 3 HIC 596. In this case the plaintiff, a custom officer, went into the defendant's docks on

business and while passing from the door way to another, six bags of sugar which were hung by a chain,

fell on him. It was held that on these facts negligence of the defendant's servant could be inferred. Erle

C.J., stated the rule: Where the thing is shown to be under the management of the defendant or his

servants, and the accident is such as in the ordinary course of things does not happen if those who have

the management use proper care, it affords reasonable evidence, in the absence of explanation by the

defendant, that the accident arose from want of care." This rule is very useful for determining the onus of

proving further facts in the case and is unnecessary when all the facts are before the court. In India, the

rule has been applied in several cases; See, Madhuri Chaudhari v. Indian Air Lines, (1962) Cal 544; Sunder

Lal v. D. Lal, 1962 MPLJ 187; Punjab v. Modern Cultivators, (1965) SC 17; M.P.S.R.T. Corpn. v. Sudhakar,

AIR 1968 Mad 47.

7. Winfield on Tort, 8th Edn., p. 69.

8. Parker v. Millar, (1926) 42 TLR 408.

 9. Moore v. R. Fox & Sons, (1956) 1 QB 596.

under the control of others besides the defendant then the mere happening of the
accident is insufficient evidence against the defendant.1

The accident must be such as could not in the ordinary course of things have
happened without negligence.—If the fact of the accident itself justifies the inference
of negligence, then it means not only that all the circumstances must be considered, but
that they must be considered, in the light of common experience and knowledge. In
effect the judge takes notice of the common experience of mankind. For instance, it is
common experience which shows that a barrel of flour will not fall from an upstairs
window onto a passer by in the street if those in charge take proper care, 2 or that a
clock tower will not fall onto a passerby in the street if those in charge take proper
care,3 or that two railway trains belonging to the same company will not collide without
negligence on the part of the company or its servants. 4 On the other hand, the mere
fact that a fire spread from an ordinary domestic grate is not sufficient because every
one knows fires occur through accidents which happen without negligence on anybody's
part.5

In India, the above rule has been applied in several cases. 6 Two of the decisions of the
Supreme Court deserve special mention, viz., State of Punjab v. Modern Cultivators and
Municipal Corporation of Delhi v. Subhagwanti.

In State of Punjab v. Modern Cultivators 7, a suit was brought by a firm against the State
of Punjab to recover damages for loss suffered by flooding of its lands as a result of a
breach in a canal belonging to the State of Punjab. Sarkar J., stated:

"The rule of res ipsa loquitur applies to this case. The canal was admittedly in
the management of the defendant and canal banks are not breached if those in
management take proper care. In such cases the rule would apply and the
breach itself would be prima facie proof of negligence. No doubt the defendant
can show that the breach was due to act of God or due to act of a third party or
any other thing, which would show that it had not been negligent, but it did not
do so. No reason was advanced why the

______________________________

1. Gee v. Metropolitan Rly., (1873) LR 8 QB 161.

2. Byrne v. Boadle, (1863) 2 H&C 722.

3. Municipal Corporation of Delhi v. Subhagwanti, MANU/SC/0010/1966 : AIR 1966 SC 1750.

4. Skinner v. L.B. & S.C. Rly., (1850) 5 Ex 787.

 5. Sochacki v. Sas, (1947) 1 All ER 345, per Lord Goddard C.J.

6. Indian T. & G. Co. v. Madhukar, MANU/MP/0028/1967 : AIR 1967 MP 110; Indian Airlines v.

Madhuri, AIR 1965 Cal 252; G & N.I.T. Co. v. Dinkar Joshi, AIR 1955 MP 214; Nagamani v. Corp. of
Madras, AIR 1956 Mad 59; K.T. Ltd. v. J.T.S. Ltd., MANU/RH/0056/1960 : AIR 1960 Raj 224;

Swaranbhai v. Jogindrapal, AIR 1970 MP 86; Mangi Lal v. Parasram, MANU/MP/0002/1971 : AIR

1971 MP 5; Collector of South Arcot v. Vedanthachariar, MANU/TN/0200/1972 : AIR 1972 Mad 148;

Subhas Chandra v. Ram Singh, AIR 1972 Del 189; State of Punjab v. C.M. Ram, AIR 1971 Punj 373;
Pelhitla Savitri v. G.K. Kumar,MANU/AP/0559/2000 : AIR 2000 AP 467; Nirmala v. Tamil Nadu

Electric Board, MANU/TN/0197/1984 : AIR 1984 Mad 201; Padma Behari Lal v. Orissa State

Electricity Board, MANU/OR/0018/1992 : AIR 1992 Ori 68; Shyamal B. Saha v. State of West

Bengal, MANU/WB/0228/1998 : AIR 1998 Cal 203; State of Madhya Pradesh v. Asha Devi, AIR 1989

MP 93; Gangaram v. Kamlabai, MANU/KA/0103/1979: AIR 1979 Kant 106; Mahabir Prasad Goel v.

Ganga Saran Singh, AIR 1983 All 20; Shyam Sunder v. State of Rajasthan, MANU/SC/0208/1974 :

AIR 1974 SC 890; G. Satpathy v. Brandoban Misra,MANU/OR/0068/1983 : AIR 1983 Ori 242;

Pushpabai v. Ranjit Ginning & Pressing Co., AIR 1977 SC 1935; Gobald Motor Service Ltd. v.
Veluswami, MANU/SC/0016/1961 : AIR 1962 SC 1; Autmobili Transport v.

Dewalal, MANU/RH/0020/1977 : AIR 1977 Raj 121; Byrne v. Boadle, (1863) 2 H&C 722; Walsh v.

Holst & Co., (1958) 1 WLR 800, where brick fell into a Highway on a person from a building.

7. MANU/SC/0011/1964 : AIR 1965 SC 17.

rule should not apply.1 Therefore I think that the first contention of the
defendant that there is no evidence of negligence must be rejected."

In Municipal Corporation of Delhi v. Subhagwanti2, three persons died as a result of the

collapse of the Clock Tower situated opposite the Town Hall in the main bazar of
Chandni Chowk, Delhi, belonging to the appellant corporation. Accordingly, three suits
for damages were filed by the heirs of three persons killed as a result of the collapse of
the clock tower. Ramaswami, J., observed:

"It is true that the normal rule is that it is for the plaintiff to prove negligence
and not for the defendant to disprove it. But there is an exception to this rule
which applies where the circumstances surrounding the thing which causes the
damage are at the material time exclusively under the control or management of
the defendant or his servant and the happening is such as does not occur in the
ordinary course of things without negligence on the part of the defendant. The
doctrine of res ipsa loquitur applies in the circumstances of the present case. It
has been found that the Clock Tower was exclusively under the ownership and
control of the appellant or its servants. It has also been found by the High Court
that the Clock Tower was 80 years old and the normal life of the structure of the
top storey of the building, having regard to the kind of mortar used, should be
only 40 or 45 years. There is also evidence of the Chief Engineer that the
collapse was due to thrust of the arches of the top portion and the mortar was
 deteriorated to such an extent that it was reduced to powder without any
cementing properties. It was also not the case of the appellant that there was
any earthquake or storm or any other natural event which was unforeseen and
which could have been the cause of the fall of the Clock Tower. In these
circumstances the mere fact that there was fall of Clock Tower tells its own story
in raising an inference of negligence so as to establish a prima facie case against
the appellant."

In another case of Pillutla v. G.K. Kumar3, the plaintiff's husband, an Advocate, was
relaxing on the ground floor of his tenanted premises. Suddenly, a portion under
construction on the first floor collapsed and fell down on the Advocate, resulting in his
death. The principle of res ipsa loquitur was applied and there was presumption of
negligence on the part of the defendants. The defendants were held liable.4

In Aparna Dutta v. Apollo Hospital Enterprises Ltd.5, the plaintiff got herself operated for
the removal of her uterus in the defendant hospital. During operation, abdominal pack
was left in the abdomen. The same was removed by a second operation. Leaving
foreign matter in the body during operation was

___________________________

1. Barkway v. South Wales Transport Co. Ltd., (1950) 1 All ER 592.

2. MANU/SC/0010/1966 : AIR 1966 SC 1750.

3. MANU/AP/0559/2000 : AIR 2000 AP 467.

4. See also, Nihal Kaur v. Director, PGI, Chandigarh, (1996) III CPJ 41 (Punjab SCDRC where a pair of

scissors were left in the body during operation; A.H. Khodwa v. State of Maharashtra, 1996 ACJ 505 (SC)

where a mop was left inside the abdomen during operation.

5. MANU/TN/0424/2000 : AIR 2000 Mad 340.

held to be a case of res ipsa loquitur. The doctor who performed the operation and the
hospital were held liable to pay compensation of Rs. 5,80,000 to the plaintiff.1

In Agya Kaur v. Pepsu Road Transport Corporation2, a rickshaw going on the correct
side was hit by a bus coming from the wrong side of the road. The maxim res ipsa
loquitur was applied and the defendant corporation, whose driver had caused the
accident, was held liable.

Similarly, in Karnataka State Road Transport Corp. v. Krishnan 3, the two buses in an
accident brushed each other in such a way that the left hands of two passengers
travelling in one of these buses were cut-off. The court held that the accident itself
speaks the negligence of the drivers of both vehicles. The doctrine of res ipsa loquitur
was applied, and, in the absence of any satisfactory explanation, the defendants were
held liable.

Another illustration on this point is the recent case of Soni Hospital v. Arun Balakrishnan
Iyer,4 where an abdominal pad was left inside the body of patient at the time of surgery
which caused severe pain affecting health and also mental agony to the patient. The
patient/plaintiff had to undergo second surgery whereby abdominal pad having label of
defendant hospital was found inside her body. Evidence of doctor who recovered
abdominal pad clearly showed that pain developed after surgery conducted by
defendants. The court held that leaving abdominal pad inside the body of patient during
operation itself speaks negligence on the part of the doctor. The court, therefore,
applied the maxim res ipsa loquiter and, in the absence of any satisfactory explanation,
held the defendants liable for a sum of Rs. ` 3,35,000.

The burden on the defendant.—In a case where the maxim res ipsa loquitur applies,
what should the defendant do to discharge his burden. In State of Punjab v. Modern
Cultivators,5 the Supreme Court stated that the defendant, in order to discharge his
burden, "can show that the breach was due to act of God or due to act of third party or
any other thing which would show that he had not been negligent." It follows that if the
defendant shows how the accident actually occurred and the true explanation is
consistent with due diligence on his part, then he is not liable. 6 Even if he cannot
explain the accident, but if the defendant shows that there was no lack of reasonable
care on his part or on the part of persons for whose negligence he is responsible, then
again he is not liable.7 In P. Ramudu v. Superintendent Engineer, APSEB,8 the victim
and her she buffaloes

_________________________________

1. See also, Gangaram v. Kamlabai, MANU/KA/0103/1979 : AIR 1979 Kant 106, where the tyre

bursted, Bihar State Road Transport Corporation v. Manju Bhushan, MANU/BH/0021/1992 : AIR

1992 Pat 109; Mahabir Prasad Goel v. Guru Saran Singh, AIR 1983 All 20; Gouribai v. Jagdish Prasad, AIR
1984 Bom 231; Kaunu Rawther v. Kerala State Road Transport Corporation, MANU/KE/0029/1975 :

AIR 1975 Ker 109; Subhash Chander v. Ram Singh, AIR 1972 Del 189; S.K. Devi v Uttam
Bhai, MANU/OR/0067/1974 : AIR 1974 Ori 207; G. Satpathy v. Brandaban

Mishra, MANU/OR/0068/1983 : AIR 1983 Ori 242; Pushpabai v. Ranjit Ginning and Pressing

Co., MANU/SC/0249/1977 : AIR 1977 SC 1735; Automobile Transport v. Dewa

Lal, MANU/RH/0020/1977 : AIR 1977 Raj 121.22

2. AIR 1980 P&H 183.

3. MANU/KA/0120/1981 : AIR 1981 Kant 11.

4. AIR 2011 Mad 208.

5. MANU/SC/0011/1964 : AIR 1965 SC 17.

 6. For example, X, a thief, entered the house of Y and when Y tried to catch hold of him he attacked Y. Y,

then in selfdefence threw a stone on him which, instead of striking X fell on the road and injured a

pedestrian. Now in this case the maxim res ipsa loquitur applies, but when the defendant shows as to how

the accident actually occurred and there is no mistake on his part or he has taken due diligence on his part

as in the present case, he will not be liable.

7. Swan v. Salisbury Construction Co. Ltd., (1896) 1 WLR 204; See also, Woods v. Duncan, 1946 AC 401;

Walsh v. Holst & Co. Ltd., (1958) 1 WLR 800; Nagamani v. Corporation of Madras, AIR 1956 Mad 59; S.

Vedentacharya v. Highways Deptt. of South Arcot, 1987 CJ 783; Kallulal v.

Hemchand, MANU/MP/0023/1958 : AIR 1958 MP 48.

8. Writ Appeal No. 54/1999, Andhra Pradesh High Court, decided on dated 4-11-2008.

were came in contact with the G.L wire and as a result, they were electrocated. The said
wire had fallen on the ground from one end and has not been removed for continuous
period of 8 days. There was no explanation by the electricity department as to why the
said wire has not been removed for continuous period of 8 days. Thus, there was
negligence on the part of officials of the electricity department and the department was
held liable.

7. Consequent damage

The third ingredient of the tort of negligence is that the plaintiff's damage must have
been caused by the defendant's breach of duty and not due to any other cause. Even if
the damage is c relevant in all torts, has already been done in the chapter on `General
Defences', and that contributory negligence will be dealt with 

caused by the defendant's breach of duty, the defendant will not be liable if the damage
is too remote a consequence of it,1 or it may be a case of contributory negligence.2

Discussion on remoteness of damage, a topi in a subsequent chapter.

Application of the Donoghue principle.—However, it is relevant to mention here that

the principle laid down in Donoghue v. Stevenson has been applied in a variety of cases.
These cases are discussed below.

Cloth Manufactures.—In an Australian case of Grant v. Australian Knitting Mills

Ltd.3, the plaintiff purchased a woolen garment from a retailer which was manufactured
by the defendant. He suffered from acute dermatitis as a result of wearing the garment
because of the presence of excess sulphites which, it was found, had been negligently
left in the cloth in the process of manufacture. The presence of chemical was a hidden
and latent defect and could not be detected by any examination that could reasonably
be made. The Privy Council followed the rule laid down in Donoghue v. Stevenson and
held that under the circumstances, the defendants owed a duty of care towards the
plaintiff even though there was no contractual relationship. The argument that
Donoghue's case related to food or drink where the pants were to be worn externally
was rejected by the Privy Council on the ground that `no distinction, however, can be
logically drawn for this purpose between noxious thing taken internally and a noxious
thing applied externally.'

Fitters.—In Malfroot v. Noxal Ltd.4, the husband owned a motor cycle and he had
employed the defendants to fit a side car to it. After the work had been done the
husband was driving the combination with his wife, when the side car broke loose and
they were both injured. It was held by the court that both plaintiffs could recover
damages on the ground that if a contractor knows that his work, if negligently done,
may expose others besides his contracting party to danger and that it will be used
without intermediate examination, he is under a duty to those persons.

Repairers.—Donoghue's principle was applied to repairers also. In Stennet v.

Hancock5, the defendant repairer had negligently reassembled a wheel, and a driver,
the servant of the contracting party, was injured. Holding the defendant liable, the court
stated that it was not the duty of the lorry owner to examine the wheel when it was
shown that after repair the wheel was not interfered with and hence the repairer was
liable in damages to the pedestrian.

__________________________

1. See `Remoteness of damage' discussed supra.

2. See `Contributory Negligence', discussed infra.

3. 1936 AC 85.

4. (1936) 51 TLR 551.

5. (1939) 2 All ER 578.

Another case worth mentioning in this area is that of Haseldine v. C.A.D. & Sons Ltd.1,
where a repairer had failed to keep a lift in proper condition although under a contract
to a third party to do so. The court held the repairer liable on the ground that he owes a
duty to any person by whom that article, repaired by him, is expected to be lawfully
used.

Monumental mason.—In Brown v. T & E C Chotterill2, a monumental mason carelessly

erected a gravestone in a churchyard which subsequently collapsed upon persons
lawfully using the churchyard. Although there was no relation of manufacturer to
consumer, but the learned judge laid down that he was following Donoghue's case. As a
reasonable man the monumental mason was under a duty to erect the gravestone in
such a way that it may not injure the user and hence he was held liable.

It should be noted that all the above mentioned cases did not relate to the consumer of
goods. However, the judges, while deciding these cases, contemplated that there
existed a duty to take care not only to that person who was the customer but to any
person who may suffer by its use.

The Donoghue's principle has been applied in toto by the Indian Courts. A few cases are
given as under:

Vehicle Drivers.—In P.V.C. Tharakan v. K. Narayanan3, a child of five years was hit by
a car driven by the second defendant and belonging to the first defendant on a
particular road and at such a spot where there are shops, residential houses and heavy
vehicular traffic. Holding the defendant liable, J. Krishna Iyer observed:

"I agree that accidents without negligence are not uncommon and every
automobile casualty does not call for a rash driver as scapegoat of the law. The
plaintiff must prove the defendant's negligence. It happens sometimes that
children, not properly taken care of by their parents, frisk about thoughtlessly
and get run over by the most careful drivers. They are cases of damnum sine
injuria. Let us examine the situation more closely. A pedestrian or a cyclist may
sometimes be negligent and may cause damage, but a motorist causing damage
by negligent driving causes casualties when life is lost. Naturally, the very
severity of the consequences must lead to greater diligence. I would, therefore,
expect an automobile driver as a prudent person to take far more care than a
pedestrian or a car driver. Similarly, driving on a city road or along a residential
street which is crowded and there being shops by the road, calls for greater care
on the part of the speedy motorist. Again, a road which is narrow, puts the
driver under a more serious obligation of circumspection. In this case, there is
evidence to show that some where near the point of accident there was a
stationary bus, thus narrowing the street available for driving. The various
factors that produce accidents in an overcrowded city with narrow streets must
register in the motorist's mind. Negligence is not a legal abstraction.

_____________________

1. (1941) 2 KB 343.

2. (1934) 51 TLR 21.

3. MANU/KE/0045/1972 : AIR 1972 Ker 159.

First, there must be a duty to take care; and next the act which caused the
damage must have been done without that degree of care that the law enjoins.
Love thy neighbour is a moral injunction; do not harm the neighbour is a legal
obligation. Who is a neighbour in the eyes of law has been explained by Lord
Atkin in Donoghue v. Stevenson. The rule regarding the prudent man and his
perspective about neighbours and the initial presumption against the motorist
 now spelt out by me may be viewed as too demanding but those who use
vehicles in high risk circumstances must bring to bear in equally high degree of
care as a safety obligation".1

In the case of Agya Kaur v. P.R. Transport Corp. 2, a rickshaw going on the correct side
was hit by a bus coming from the opposite direction on the wrong side of the road. The
speed of the bus was very high, so much so, that it, after hitting the rickshaw, also hit
an electric pole. The court held that the driver was negligent and as such the defendant
was held liable.

In another case of Jauhri Lal v. P.C.H. Reddy 3, the driver of a truck allowed one person
to sit on his left side in violation of section 83 of the Motor Vehicle Act. Bus vision
having been obstructed, he could not locate a scooter rickshaw on the left side at the
road junction. The truck dashed the scooter rickshaw, which was overturned and
injuries were also caused to the plaintiff. The defendant was held liable on the ground
that allowing a person to sit on the left side established that the truck driver was
negligent.

In Ishwar Devi v. Union of India 4, when a person, the deceased, had placed his foot on
the footboard of the bus and had not yet gone in, the conductor in a very great haste
rang the bell and the driver started the bus. The driver made an attempt to overtake
another stationary bus so closely that the deceased got squeezed between the two
buses and sustained multiple injuries which resulted in his death. The court held that
both the driver and the conductor were rash and negligent in not taking proper care for
the safety of the passengers.5

___________________________

1. See also, Sushma Mitra v. M.P.S.R.T.C., AIR 1974 MP 63 where the passenger was travelling with her

elbow on the window of a bus. She was hurt by a passing truck from the opposite direction. Both drivers

were held liable in negligence and the court stated that there was no contributory negligence of the plaintiff

as it is common practice for the passengers who sit near a window to rest their arms on the window on long

journeys.

Note: B.S. Sinha puts a query in his book on "Law of Tort", p. 30, f.n. 32: "What would be the

position when a notice, forbidding passengers to keep any part of their body outside the bus is

displayed prominently in the bus? This point was not apparently raised". However, the answer to

this query may be found in the maxim volenti non fit injuria.

2. AIR 1980 P&H 183; See also, Gangaram v. Kamlabai, MANU/KA/0103/1979 : AIR 1979 Kant 106;

Karnataka Road Transport Corp. v. Krishnan, MANU/KA/0120/1981 : AIR 1981 Kant 11, where in an

accident two buses brushed each other in such a way that the left hands of two passengers travelling in one

of these buses were cut off below the shoulder joint. Held the defendants are liable; Shyam Sunder v. State

of Rajasthan, AIR 1974 Raj 89; Amina Begum v. Ram Prakash, AIR 1978 All 526; Subhash Chander v. Ram
 Singh, AIR 1972 Del 189; Brabmananda Sahu v. H. Khanda, AIR 1981 Ori 118; Automobiles Transport v.
Dewalal,MANU/RH/0020/1977 : AIR 1977 Raj 121.

3. MANU/RH/0061/1975 : AIR 1975 Raj 232.

4. AIR 1969 Del 183.

5. See also: Rural Transport Service v. Bezlum Bibi, MANU/WB/0044/1980 : AIR 1980 Cal 165;

Makbool Ahmad v. Bhura Lal, AIR 1986 Raj 176; Y.S. Kumar v. K.S. Jaspal, AIR 1972 P&H 326;
Dhangauriben v. M. Mulchand Bhai, MANU/GJ/0137/1981 : AIR 1981 Guj 264.

Leakage of electricity.—In T.G. Thayumanaver v. Secretary, P.W.D. Govt. of Tamil

Nadu1, an overhead electric wire running across the road fell on a cyclist resulting in his
death due to electrocution. The falling of electric wire was not due to act of God. It was
held by the court that the Electricity Board was negligent and therefore liable.

In Uttar Pradesh Power Corporation v. Bijendra Singh,2 it is held that the question of
strict liability is in built under law to avoid any accident, if not, by other measures.
Where death of the elephant was caused by coming in contact with high voltage open
wire of electricity hanging on road, the power corporation cannot eliminate themselves
from the liability be it in the nature of strict liability or common law origin or in nature of
misfeasance. He who in possession of the property is responsible for the cause of
accident to others. There is no proof of the case whether current was passing through
wire hanging on the road. Even their role witness did not say anything about the same.
Hence, the principle applicable herein is that when one gets unknowingly trapped into it,
the primary liability to compensate the suffered is that of the supplier of the electric
energy. Therefore, award of compensation against power corporation would be proper.

Similarly, in Dhanaveni v. State of Tamil Nadu3, a person slipped into a pit filled with
rain water in the night. While slipping he caught hold of a near by electricity pole, to
avert the fall. Due to leakage of electricity in the pole, he was electrocuted. The
defendant was considered negligent in maintaining the electric pole and was held liable
for the death due to electrocution.

Tree falling on the road side.—In Municipal Corporation of Delhi v. Sushila Devi4, a
person passing by the road died because a branch of a tree standing on the road fell on
his head. It was found as a matter of fact that the tree had dried up and had no bark,
therefore, the same was dead, dried and dangerous. The court, following the earlier
decision of M.C.D. v. Subhagwanti, held that the Horticulture Department of the
Corporation failed to carry out periodical inspection of the trees and did not taken safety
precautions to see that the road was safe for the users. The Municipal Corporation of
Delhi was, therefore, held liable for the negligence.

Railway crossing.—In Mata Prasad v. Union of lndia5, the gates of a railway crossing
were open. When the driver of a truck tried to cross the railway line, the truck was hit
by an incoming train, resulting in injuries to the plaintiff. The court held that when the
gates of the railway crossing were open, the driver of the truck could assume that there
was no danger in crossing the railway track. It was, therefore, held by the court that
not closing the railway crossing gate, when the train was about to arrive, was
negligence on the part of the railway administration and the defendants were liable for
the same.6

But it should be noted that the railway administration does not have a duty to man all
the railway crossing in the country, particularly at a place where there is very little
traffic. It was so held in the case of Prag Ice & Oil Mills v. Union of

________________________________

1. MANU/TN/0036/1997 : AIR 1997 Mad 263.

2. AIR 2009 All 56.

3. MANU/TN/0035/1997 : AIR 1997 Mad 257.

4. AIR 1996 SC 1929.

5. MANU/UP/0078/1978 : AIR 1978 All 303.

6. Orissa Road Transport Co. v. Umakant Singh, 1987 ACJ 133.

India,1 where the plaintiff's tractor, which had chains instead of rubber wheels, tried to
cross through the line at this crossing but was struckup. The driver abandoned the
tractor on the line which was thrown off by the impact of the railway engine. It was
found as a matter of fact that the driver did not make any effort to give signal to the
approaching train so that it could have been stopped before the accident. The court held
that the railway administration had no duty to man a railway crossing at such an
unfrequented place, but it was the duty of the public using the same to be on the
lookout for trains coming from either side. Accordingly, the damage caused to the
tractor was considered to be due to plaintiff's own doing and he was not entitled for any
compensation.

Trenches dug by the side of road.—In the case of B.P. Singh v. Ramdas and Sons 2,
the facts briefly were that the defendants had taken a contract for laying a pipe line
from place A to B and for that purpose they had dug out trenches by the side of the
road in front of the Government Hospital. The trench was left open and it was neither
fenced nor any light was placed by the side of the trench as a security measure. The
plaintiff was going to the hospital at about 8 p.m. and fell down in the trench and
received injuries. It was found by the court that the road to the hospital was a busy
thorough fare and people used to pass through that road day and night and that the
night of occurrence was a dark one as black out was being observed on account of the
Indo-Pakistan war. It was argued on behalf of the plaintiff that in the circumstances the
defendants were negligent in not putting any fence round the trench and in not putting
any red light there. Holding the defendant liable, the court observed, following
Donoghue's case, that the defendants must have known that on account of darkness
prevailing all round it was not unlikely that the pedestrians using the road might fall into
the ditch. After quoting the definition of negligence given by Alderson in the case of
Blyth v. Bermingham Water Works Co.3, the court observed:

"It follows that any reasonable man after having dug the trench adjoining the
highway is expected to take such precaution about fencing the trench and
putting red light round about it so that persons using the high way in the night
might not fall inside the trench. In my opinion there cannot be any manner of
doubt that the defendants were negligent in not fencing the trench by the side of
the highway and giving proper warning of its existence there in the dark night".4

On the whole, it is submitted, that an action for negligence can successfully lie when
there is a duty to take care on the part of the defendant, and the test of duty to take
care depends on what you should reasonably foresee.

There is no duty of care owed to a person when the defendant could not reasonably
foresee an injury to the plaintiff. A few cases on this point are as follows:

In Dr. M.M. Gowda v. State of Karnataka5 the facts were that the plaintiff and
his five children took an elephant joy ride on 7th October, 1992 at about 8 p.m.

_________________________________

1. MANU/UP/0193/1980 : AIR 1980 All 168.

2. MANU/BH/0102/1973 : AIR 1973 Pat 294.

3. (1856) Ex 781 (784). "Negligence is the omission to do something which a reasonable man, guided upon

those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something

which a prudent and reasonable man would not do."

4. It is submitted that fencing of the trench in the present situation is desirable, but the observation of the

court that the red light must also be there is not desirable in war time when nation's interest is involved.
See also: Municipal Board v. Brahm Kishore, MANU/BH/0102/1973 : AIR 1973 Pat 294.

5. (1996) II CPJ 307 Kart.

in Mysore Dasara Exhibition ground after having purchased tickets for the same. After
taking some rounds while the plaintiff and others were in the process of getting down
from the cradle, the elephant became panicky in that rush hour and ran forward. The
plaintiff was thrown on the ground and received serious injuries resulting in total loss of
eyesight of both the eyes. He claimed damages amounting to Rs. 9,90,000. It was
found that the elephant had never become panicky in the past 13 years although it
participated in such rides, festivals, film shootings, religious functions and honouring the
V.I.Ps. The reason of the accident was unusual and unfortunate behaviour of the
elephant which could not reasonably have been foreseen by the defendant. It was held
by the court that there was no negligence on the part of the defendant who had
organised the joy ride.

In another case of Krishnappa Naidu v. Union of India 1, the plaintiff's taxi, while passing
from a railway crossing, was hit by the train. It was found by the court that the taxi
driver entered into the railway crossing in spite of the warnings given by the railway
gateman. It was held by the Court that the taxi driver was a trespasser on the railway
track and whose presence could not be anticipated by the railway driver. As there was
no negligence on the part of railway administration or its staff, the defendants were
held not liable.2

Another worth mentioning case is that of Dickson v. Reuter Telegraph Co.3 In this case
A sent a telegram to B for the shipment of Barley. The telegraph company, mistaking
the registered address of C for that of B, delivered the telegram to C. C sent the goods
to B. A refused to accept the goods sent by C. C sued the telegraph company for the
loss suffered by him. It was held by the court that C had no cause of action against the
telegraph company, for the company did not owe any duty of care to C.

8. Negligence: Legal profession

In England, for over a century, it has been held that barristers cannot be sued for
breach of professional duty. This rule was initially based on the ground that they are
under no contractual obligation towards their clients, and the fees received by them are
considered in the nature of honorarium. Thus, in Swinfen v. Chemsford (Lord)4, Pollock
C.B., said:

"We are all of the opinion that an advocate in the English Bar, accepting a brief
in the usual way, undertakes a duty, but does not enter into any contract or
promise, express or implied. Cases may indeed, occur where, on an express
promise (if he made one) he would be liable in assuming it; but we think a
barrister is to be considered not making a contract with his client, but as taking
upon himself an office or duty, in the professional discharge of which not merely
the client but the court in which the duty is to be performed, and the public at
large, have an interest."5

_______________________________

1. (1975) II MLJ 353.

2. See also, Cates v. Mongini Bros., (1917) 19 Bom LR 778; Ryan v. Youngs, (1938) 1 All ER 522; Glasgow
 Corp. v. Muir, 1943 AC 488; Mysore State Road Transport Corporation v. Albert Dias, AIR 1973 Mys 240.

3. (1877) 3 CPD 1. This case was confirmed in Playford v. U.K. Electric Telegraph Co., (1960) LR 4 QB 706.

4. (1860) 5 H&N 890.

5. Ibid., p. 920.

Similarly in Batcelor v. Pattison1, Lord President (The Rt. Hon. John Inglis) said:

"An Advocate in undertaking the conduct of a cause in this court enters into no
contract with his client, but takes on himself an office in the performance of
which he owes a duty, not to his clients only, but also to the court, to the
members of his own profession, and to the public.........It follows also that he
cannot demand or recover by action any remuneration for his services, though in
practice he received honoraria in consideration of those services..."2

Halsbury's Laws of England3 states the law as follows:

"If a barrister acts honestly in the discharge of his duty, he is not liable in action
by his client for negligence or for want of skill, discretion or diligence in respect
of any act done in the conduct of a cause or in setting drafts or in advising. No
action is maintainable against a barrister for unskillfully drawing pleadings. The
law requires of counsel nothing but the honest discharge of his duty to the best
of his judgment: and he means what he does to be for the benefit of his client,
he is not responsible to his client for anything he does. The immunity from
action is not confined to litigation, but extends to all cases where the relation of
counsel and client exists."

This statement, however, is prefaced by a statement that the client is precluded from
suing counsel by the mutual incapacity of counsel and client to contract for the services
of counsel.4

Nearly all the textbooks5 and cases6 base immunity of a barrister from action by his
client on the basis of his incapacity to sue for fees. But in 1969 this immunity of a
barrister on the basis of his incapacity to sue was given up by the House of Lords in an
important case of Rondal v. Worsley7 where a new concept of `public policy' was
introduced as a ground for nonliability (immunity) of a Barrister. It was held by the
House of Lords that "a barrister was immune from action for negligence at the suit of a
client in respect of his conduct and management of a cause in court and the preliminary
work connected therewith, such as the drawing of pleadings." The immunity was not
based on the absence of contract between the barrister and client but on public policy
and long usage in that (a) the administration of justice required that a barrister should
be able to carry out his duty to the court fearlessly and independently; (b) action for
negligence against a barrister would make retrying of the original actions inevitable and
so prolong litigations, contrary to public interest, and (c) a barrister was obliged to
accept any client, however difficult, who sought his services. The Law Lords further held
that public policy did not require that

________________________

1. (1876) 3 R (Ct. of Sess.) 914.

2. Ibid., p. 921.

3. Vol. 3, (3rd Edn.), (1953).

4. Ibid., p. 46.

5. See also, Salmond on Torts, 14th Edn., (1965), p. 283; Winfield on Tort, 7th Edn., pp. 184185.

6. See also, La Brasseur and Oakley (in re:), (1896) 2 Cg 487 (493-494); Thornhill v. Evans, (1742) 2 Atk

330; Poucher v. Norman, (1825) 3 B&C 744; Morris v. Hunt, (1819) 1 Chit 544.

7. (1969) 1 AC 191.

"barrister should be immune from action for negligence in relation to matters

`unconnected' with cases in court, for if he failed to exercise the ordinary care
and skill that can reasonably be expected of him, he should be and is in no
better position than any other professional man."

Thus in England it has long been settled that immunity of a counsel or barrister from
being sued for professional negligence in the conduct of a case, criminal or civil, is
based on public policy, not on his contractual incapacity to sue for fees, and it is in the
public interest that the immunity should be retained, one factor being that counsel owes
a duty to the court for the true administration justice.

This immunity of a barrister or counsel is now statutorily recognised by section 62 of the

Courts and Legal Services Act, 1990. But the immunity of a barrister should not be
given any wider application than is absolutely necessary in the interests of
administration of justice. Where, however, a barrister/counsel acts as a solicitor, he is
liable for professional negligence. 1 Thus, in Saif Ali v. Sydney Mitchel & Co.2, it was held
that a barrister's immunity from suit does not extend to negligence in advising as to
who should be joined as defendant and in settling pleadings.

In India, Section 5 of the Legal Practitioners (Fees) Act, 1926 provides that no legal
practitioner who has acted or agreed to act shall, by reason only of being a legal
practitioner, be exempt from liability to be sued in respect of any loss or injury due to
any negligence in the conduct of his professional duties.3 Thus, in N. Veerappa v. Evelyn
Squira4, the Supreme Court held that an Advocate who has been engaged to act is
clearly liable for negligence to his client. The Supreme Court in this case did not decide
whether an Advocate who has been engaged only to plead can be sued for negligence.

In another case of Manjit Kaur v. Deol Bus Service,5 the facts were that Manjit Kaur
whose husband had been killed in a motor accident, filed an appeal through her counsel
claiming enhanced compensation. The case remained on the daily list for two weeks and
then it was dismissed in default because the counsel failed to appear on behalf of the
client. The application for re-hearing of the appeal also became time barred because the
counsel did not communicate with the party anything about the appeal for years. The
High Court, keeping in view the serious ailment of the counsel and the unconditional
apology tendered by him, warned him to be careful in future and directed him to return
the fees received by him and also to compensate the party for costs of Rs. 1000
awarded against the party for the re-hearing of the appeal.

__________________________________

1. Solicitors have always been held liable for any loss occasioned by his negligence or misconduct. Norton

v. Cooper, (1856) 3 S&G 375. Where, however, the loss does not flow from his act or default, the court will

not, merely because he has been guilty of misconduct, hold him liable him in damages; March v. Joseph,

(1896) 1 KB 194; Pilkington v. Wood, (1953) 1 Ch 770. See also, Walpole v. Partidge & Wilson, (1994) 1 All

ER 385 (CA).

2. (1978) 3 All ER 993 (HL).

3. Legal Practitioner means: Advocate, Vakil or Attorney of the High Court, a pleader, Mukhtar or Revenue

Agent.

4. MANU/SC/0259/1988 : AIR 1988 SC 506.

5. AIR 1989 P&H 183; See also, Liability of Advocate under CPA 1986, discussed infra.

9. Negligence: Medical profession

Every person who enters into a particular profession undertakes to bring to the exercise
of it a reasonable degree of care and skill. A surgeon is expected to show the care and
skill not of an ordinary layman but of a member of his class. He does not undertake that
he will perform a cure; nor does he undertake to use the highest possible degree of
skill, as there may be persons of higher education and greater advantages than himself,
but he undertakes to bring a fair, reasonable, and competent degree of skill and care 1.
A person who holds himself out ready to give medical advice and treatment impliedly
undertakes that he is possessed of skill and knowledge for the purpose. Such a person
when consulted by a patient owes him certain duties 2, viz., (i) a duty of care in deciding
whether to undertake the case, (ii) a duty of care in deciding what treatment to give
and (iii) a duty of care in the administration of treatment. A breach of any of these
duties gives a right of action for negligence to the patient.
In Kusum Sharma v. Batra Hospital and Medical Research Centre,3 the Supreme Court
held that the negligence to be established by the prosecution in cases of medical
negligence must be culpable or gross and not the negligence merely based upon an
error of judgment. Neither the very highest nor a very low degree of care and
competence is what the law requires. The liability is attracted only where the conduct of
the medical professional fell below that of the standards of a reasonably competent
practitioner in his field. The doctor would not be liable merely because he chooses one
course of action in preference to the other one available, if the course of action chosen
by him was acceptable to the medical profession. Negligence in context of medical
profession necessarily calls for treatment with difference. A professional may be held
liable on one of two findings—either he was not possessed of requisite skill which he
professed to have possessed or he did not exercise with reasonable competence the skill
which he did possess. Mere deviation from normal professional practice is not
necessarily evidence of negligence. Jurisprudential concept of negligence differs in civil
and criminal law.4

What may be negligence in civil law may not necessarily be negligence in criminal law.
For negligence to amount to an offence, the element of mens rea must be shown to
exist. For an act to amount to criminal negligence, the degree of negligence should be
much higher i.e., gross or of a very high degree. Negligence which is neither gross nor
of a higher degree may provide a ground for action is civil law but can not form the
basis for prosecution.5

The aforesaid principles has been followed in almost all the cases in India. By way of
illustration, a few cases are as follows:

9.1. Doctor's duty to attend the patient

If a doctor does not care to attend to a patient admitted in the Emergency Ward
of the hospital and the patient suffers or dies, the doctor would be liable. A case
worth mentioning on this point is: Sishir Rajan Saha v. State of Tripura.6

The facts were that petitioner's son while coming from Agartala to Udaipur on
scooter met with an accident. He was admitted to the Emergency Ward of a
Government Hospital. The senior specialist doctor was repeatedly called but he
did not bother to come to the hospital as he was busy in attending his private
patients. The petitioner's son succumbed to the injuries. The doctor was held
liable to pay Rs. 1,25,000 as compensation.

_________________________________

1. Lanphier v. Phipos, (1838) 8 C&P 475; Slaster v. Baker, (1767) 2 Will 359; Poonam Verma v. Aswin
Patel, MANU/SC/0530/1996 : AIR 1996 SC 2111 (2116).

2. Dr. Lakshman Balkrishana Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 1128; A.S. Mittal v.
 State, MANU/SC/0004/1989 : AIR 1989 SC 1570; Poonam Verma v. Ashwin Patel, cit. supra, p.

2116.

3. Civil Appeal No. 1385 of 2001. Decided on 10-2-2010.

4. Jacob Mathew v. State of Punjab, MANU/SC/0457/2005 : AIR 2005 SC 3180.

5. See, Laxmi Devi v. State of Madhya Pradesh, MANU/MP/0063/2010 : AIR 2011 MP 47; see also

Martin F. D'souza v. Mohd. Ishfaq, MANU/SC/0225/2009 : AIR 2009 SC 2049; and Bolam case, WLR

at p. 586.

6. MANU/GH/0099/2002 : AIR 2002 Gau 102.

9.2. Duty of care towards the patient

When a doctor attends to his patient, he owes him certain duties of care; viz., (i)
a duty of care in deciding whether to undertake the case, (ii) a duty of care in
deciding what treatment to give and (iii) a duty of care in the administration of
treatment. A breach of any of the aforesaid duties gives a right of action for
negligence to the patient. A breach of duty is committed by a doctor when he
does not perform the standard and degree of care like reasonable doctor of his
time or as a member of his class. A few cases on this point are as follows:

In case of State of Gujarat v. Babubhai Ukabhai1, death of deceased was caused

due to Vasovagal shock caused while administering anesthesia. There was failure
on part of doctor to exercise reasonable care and diligence expected from person
of medical profession. In such circumstances the court held the doctor guilty of
medical negligence.

In Kusum Sharma v. Batra Hospital 2, the Supreme Court held that a doctor is
often called upon to adopt a procedure which involves higher element of risk,
but which he honestly believes as providing greater chances of success for the
patient rather than a procedure involving lesser risk but higher chances of failure
and just because a doctor, in view of the gravity of illness, has taken higher
element of risk to redeem the patient out of his/her suffering which did not yield
the desired result may not amount to negligence.

In case of Kunjan Sharma v. State of Himachal Pradesh3, the deceased gave

birth to female child through normal delivery without any complication. There
became subsequent death of deceased due to sudden cardio respiratory arrest.
The doctors and nursing staff did what they could do in circumstances and
doctor performed his duty and exercised an ordinary degree of professional skill
and competence. It was held that there was no medical negligence.

In Malay Kumar Ganguly v. Sukumar Mukherjee4, the Supreme Court held that
 standard of care on the part of a medical professional involve the duty to
disclose to patients about risks of serious side effects of medicines or about
alternative treatments. If the doctor/hospital knowingly fail to provide some
amenities that are fundamental for patients, it would certainly amount to
medical malpractice. The Court further observed that an act which may
constitute negligence or even rashness under torts may not amount to same
under section 304A of IPC.

In Gian Chand v. Vinod Kumar Sharma,5 though the victim was admitted to the
surgical ward she was shifted to the children medical ward. Due to burn injuries
she could not be clothed. She should have been kept in the warmest place
available and probably for this reason on the first night she was shifted to the
children medical ward. She should not have been exposed to the vagaries of
whether. The doctor took umbrage to the fact that the child had been kept in his
ward without his permission and forced her leave the ward. The doctor has not
given any explanation as to why he shifted her out. The doctor was not only
negligent but also he was callous in his approach when he forced the parents to
shift the child from the children ward to veranda outside in the cold rainy
weather. Thus, the doctor is liable for the death of the child.

In Dr. Lakshman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole 6, the facts were
that the son of the respondent, aged about 20 years, met with an accident on a
sea beach, which resulted in the fracture of his left leg. He was taken to the
hospital for treatment. In order to reduce the fracture, the doctor did not give an
anaesthetic to the patient but contended himself with a single dose of morphia
injunction. He used excessive force in this treatment, using three of his

__________________________

1. MANU/GJ/1472/2010 : AIR 2011 Guj 77.

2. MANU/SC/0098/2010 : (2010) 3 SCC 480.

3. AIR 2011 HP 15.

4. MANU/SC/1416/2009 : AIR 2010 SC 1162.

5. MANU/HP/0140/2008 : AIR 2008 HP 97.

6. MANU/SC/0362/1968 : AIR 1969 SC 128.

attendants for pulling the injured leg of the patient. He then put his leg in
plaster. The treatment resulted in shock and caused the death of the patient.
The Supreme court held the doctor guilty of negligence.

In Achutrao Haribhau Khodwa v. State of Maharashtra1, the facts were that a

mop (towel) was left inside a woman's peritoneal cavity while she was operated
for sterilization in a Government Hospital causing peritonitis which resulted in
her death. The presumption of negligence was drawn against the doctors by
applying the principle of res ipsa loquitur. Explaining the nature of duty of care
in the medical profession, the Supreme Court laid down the law as follows:

"The skill of medical practitioners differs from doctor to doctor. The very
nature of the profession is such that there may be more than one course
of treatment which may be advisable for treating a patient. Courts would
indeed be slow in attributing negligence on the part of a doctor if he has
performed his duties to the best of his ability and with due care and
caution. Medical opinion may differ with regard to the course of action to
be taken by a doctor treating a patient, but as long as a doctor acts in a
manner which is acceptable to the medical profession and the court finds
that he has attended on the patient with due care, skill and diligence and
if the patient still does not survive, or suffers a permanent ailment, it
would be difficult to hold the doctor guilty of negligence.2 In the present
case, however, the conclusion of negligence was drawn against the
doctors by applying the principle of res ipsa loquitur, and the Government
was vicariously held liable.

The Supreme Court in the case of Indian Medical Association v. V.P.

Shantha3 held that the liability to pay damages for such negligence was not
affected by the fact that the medical practitioners are professionals, and are
subject to disciplinary control of Medical Council of India. The Supreme Court
also reversed the order of the Madras High Court4 and held that the services
rendered by the medical practitioners was covered by section 2(1)(o) of the
Consumer Protection Act, 1986 and the same was actionable in the forums
established under that Act.

In a suit for damages against doctor the onus is upon the plaintiff to prove that
the doctor was negligent and that his negligence caused the injury of which the
plaintiff complained.5 The Delhi High Court in Madhubala v. Government of
N.C.T. of Delhi6 did not grant compensation to the claimant who conceived child
even after tubectomy operation but failed to prove negligence on part of hospital
or doctor concerned. It was held that it was not the case of res ipsa loquitur.
Claimant was made aware by hospital about chance of pregnancy even after
operation. Further the claimant failed to report about irregular menstrual cycle
to the hospital which was asked for by the hospital. The claimant was herself
negligent, so the court did not grant any compensation. The Bombay High Court
in the case of Philips India Ltd. v. Kunju Punnu 7, where the plaintiff's son died
while being treated for illness by the defendant company's doctor, the court
observed that "the standard of care which the law requires is not an insurance
 against accidental slips. It is such degree of care as a normally skilful member of
the profession may reasonably be expected to exercise in actual circumstances
of the case in question. It is not every slip or mistake which imports negligence.8

__________________________

1. MANU/SC/0600/1996 : AIR 1996 SC 2377.

2. See also, A.S. Mittal v. State of Uttar Pradesh, MANU/SC/0004/1989 : AIR 1989 SC 1570. This

case refers to the guidelines issued by the Central Government for holding eye camps.

3. MANU/SC/0836/1995 : AIR 1996 SC 550.

4. Dr. C. Subramaniam v. Kumaraswamy, (1994) 1 Mad LJ 438.

5. A.N. Dais v. F. Augustus, AIR 1936 PC 154.

6. (2005) 118 DLT 515.

7. MANU/MH/0139/1975 : AIR 1975 Bom 306.

8. See also, Dr. S. Vaidya v. Paulo Joel Vales, MANU/MH/0074/1992 : AIR 1992 Bom 478.

The court held that the plaintiff could not prove that the death of her son was
due to the negligence of the doctor and, therefore, the defendants were held not
liable.

In State of Punjab v. Shiv Ram1, despite sterilization operation, the woman

became pregnant. The plaintiffs claimed against doctor on the basis of
negligence. The court held that compensation can be awarded only if failure of
operation is attributable to the negligence of doctor and not for failure due to
natural causes. If the claimant opts for bearing child despite failure of operation,
they cannot claim compensation. The burden to prove negligence lies on the
claimant.

In Dr. T.T. Thomas v. Elissar 2 the facts were that the plaintiff's husband had
severe abdominal pains and was admitted in a hospital on 11-3-1974. It was
diagnosed as a case of acute appendicitis which required immediate operation to
save the life of the patient. But the doctor faded to perform the operation and
the patient died on 13-3-1974. The Kerala High Court held that the doctor was
negligent in not performing the operation in emergency and, therefore, the
defendant was liable for the death of the patient. The doctor's plea that the
patient had not consented to the operation was also rejected by the court on the
ground that the burden of proof was on the doctor to show that the patient had
refused to undergo the operation and in this case, the doctor had failed to prove
 the same.3

In C. Sivakumar v. Dr. John Mathur4, the plaintiff had the problem of blockage of
urine, and the doctor in an attempt to perform the operation for curing the
problem, totally cut-off his penis. The plaintiff became permanently impotent. It
was held to be a case of deficiency in service and the defendants were held
liable to pay an amount of compensation of Rs. 8,00,000 to the plaintiff.

Similarly, in Lakshmi Rajan v. Malar Hospital Ltd.5, the complainant, a married

woman, noticed development of a painful lump in her breast. The hospital's
doctor while treating the lump, removed her uterus without justification. It was
held to be a case of deficiency in service for which the opposite party was
directed to pay Rs. 20,000 as compensation to the complainant.

In State of Gujarat v. Laxmiben Jayantilal Kikligar6, the plaintiff was suffering

discomfort and pain in swallowing. He went to Civil Hospital, Godhra, for
treatment and the Civil Surgeon performed the surgery on her thyroid gland.
After the operation she suffered permanent partial paralysis of larynx (Voice
Box) as a consequence of damage to or cutting of recurrent laryingal nerve. The
Court held that the surgeon was negligent as he did not take precaution before
and during the surgery and awarded damages amounting to Rs. 1,20,000
alongwith interest @ 12% p.a. from the date of the suit till realisation.

In Dr. P. Narsimha Rao. v. G. Jayaprakasu7, the plaintiff, a brilliant student of 17

years, suffered irreparable damage in the brain due to the negligence of the
surgeon and the anaesthesist. There was no proper diagnosis and if the surgeon
had not performed this operation, the plaintiff could have been saved from the
brain damage. The anaesthesist was also negligent in so far as he failed to
administer respiratory resuscitation by oxygenating the patient with a bag or
mask. The defendant was, therefore, held liable.

__________________________

1. MANU/SC/0513/2005 : AIR 2005 SC 3280.

2. MANU/KE/0012/1987 : AIR 1987 Ker 42.

3. See also, M.L. Singhal v. Dr. P. Mathur, AIR 1996 Del 261; Satish Chandra v. Union of India, 1967 ACJ
628; Rajmal v. State of Rajasthan, MANU/RH/0023/1996 : AIR 1996 Raj 80 where the state was

liable, not because of negligence of doctor, but due to lack of adequate resuscitative facilities in the form of

proper equipment, as well as trained and qualified anaesthetist.

4. (1998) III CPJ 436 (Tamil Nadu SCDRC).

5. Ibid., p. 586.
6. MANU/GJ/0160/1999 : AIR 2000 Guj 180.

7. MANU/AP/0039/1990 : AIR 1990 AP 207.

In Raymal v. State of Rajasthan 1, the petitioner's wife died while she was being
operated for laproscopic tubectomy operation at a Primary Health Centre. The
apparent cause of death was not the negligence of the doctor but of adequate
facilities in the form of proper equipments, as well as trained and qualified
anaesthesist. The court held the Government liable to pay compensation of Rs. 1
lakh to the husband of the deceased.

M.L. Singhal v. Dr. Pradeep Mathur2, is another case where the plaintiff's wife
suffered from anaemia and had problem in urinating, was admitted in Sir Ganga
Ram Hospital, Delhi, under the treatment of Dr. Mathur. The nursing staff of the
hospital was negligent and not the doctor. There was leakage of catheter and
the patient developed bed sores which hastened the death of the patient. The
hospital was liable to pay compensation amounting to Rs. 10,000 to the plaintiff
on account of mental torture suffered by him because of bad nursing.

Newly born child missing.—In Jasbir Kaur v. State of Punjab 3, a newly born
child was found missing in the night from the bed in S.G.T.B. Hospital, Amritsar.
The child was found profusely bleeding and with one eye totally gouged near the
wash-basin of the bath room. The plaintiff contended replacement of the child
whereas the hospital authorities contended that the child had been taken away
by a cat which caused the damage to him. The court presumed that the hospital
authorities were negligent and awarded compensation amounting Rs. 1 lakh.

Unsuccessful sterilization.—In State of Haryana v. Santra4, the facts use that

Santra was having seven children and therefore approached the C.M.O. Gurgaon
for sterilization which was done under the State sponsored family planning
programme. She developed pregnancy after the operation and gave birth to a
female child. Thus there was additional economic burden on the poor person.
The Court held that the doctor was negligent per se as he obviously failed in his
duty to take care and therefore both State and doctor were held liable to pay
damages to the plaintiff.

In case of State of Kerala v. P.G. Kumariamma 5, the plaintiff asserted that she
was given assurance by doctor that once she underwent laparoscopic
sterilisation, she would not conceive again. She was also not informed about
possible failure of operation. There was evidence to show the possibility of
negligence on part of medical practitioner, who had carried out sterilisation
operation. There was no attempt from the side of State at all to show that there
was no negligence on the part of surgeon, who had conducted sterilisation
operation. It was held that subsequent pregnancy was due to negligence by
 medical practitioner hence State was held liable to pay compensation.

But where the operating surgeon has not given any assurance and tells the
patient about the consequences and chances of failure of operation and the
patient agrees for sterilization operation, the doctor will not be held liable. Thus,
in the case of Laxmi Devi v. State of M.P.,6 a child was born despite sterilization
operation. It may however be mentioned that the surgical intervention in
sterilization operation is under taken under general Anesthesia but it is not a
surgery over any part or organ of human body as in sterilization operation right
and left fallopian tubes are closed and they are not completely cut which can
always have a possibility of opening of the knot of fallopian tube for facilitating
spermatozoa to gross embryo into the womb/ovary. In instance case operating
surgeon while describing nature of surgery had demonstrated statement that

______________________________

1. MANU/RH/0023/1996 : AIR 1996 Raj 80.

2. AIR 1996 Del 261.

3. AIR 1995 P&H 278; See also, Dr. C. Subramaniam v. Kumaraswamy, (1994) 1 Mad LJ 438; Ram Behari
Lal v. Dr. J.N. Srivastava, MANU/MP/0030/1985 : AIR 1985 MP 150.

4. AIR 2000 SC 1488.

5. AIR 2011 (NOC) 250 (Ker).

6. MANU/MP/0063/2010 : AIR 2011 MP 47.

since fallopian tubes are closed by trying than from outside, there exist every
possibility of opening of the knot, which may result in conception of pregnancy
by a lady on account of variety of physical factors and natural circumstances.
Thus, surgeon explained about consequences and chances of failure of operation
and the plaintiff (Mrs. Laxmi Devi) voluntarily agreed for the operation.
However, even after conceiving child in spite of operation, plaintiff neither
complained to the surgeon nor acted for termination of pregnancy. The court
held that accidental opening of knot of fallopian that due to physical factors and
natural circumstances cannot be termed as `negligence' or `gross negligence' as
subsequent development was beyond control of surgeon. Plaintiff having failed
to establish negligence on the part of surgeon is not entitled to any
compensation.

Joint Director of Health Services, Shivagangal v. Sonal1 is another case where

wife of the plaintiff underwent a family planning operation and was discharged
the same day. Post-operational treatment was not properly given and two days
 after she had abdominal pain, her stitches were permitted to be removed by an
unqualified motivator and a few days after that, she died. Both the doctor and
the State government were held liable.2

Free eye camp.—In Pushpaleela v. State of Karnataka, a free eye camp was
organised by Lions Club and a Social Service Organisation where 151 person
were operated for cataract problem and most of them developed infection after
surgery. Out of them 72 persons lost sight in one eye and four in both the eyes.
It was found that the guidelines laid down by the Government of India were not
followed. Thus, there was negligence in performing eye operations. The Madras
High Court awarded damages to the victims ranging from Rs. 40,000 to Rs.
1,50,000 on the basis of injury suffered by them.

Pack left in body during operation.—In Aparna Dutta v. Apollo Hospital

Enterprises Ltd., Madras3, the plaintiff was living with her husband in Saudi
Arabia. She developed some gynaecological problem. She was advised surgery
and therefore she came to India for removal of her uterus. She got herself
operated in Apollo Hospital, Madras, but due to the negligence of the doctor a
foreign object i.e., abdominal pack, had been left in the abdomen. Later on she
complained of pain and therefore subsequent operation was performed and the
abdominal pack left behind was removed. The maxim res ipsa loquitur was
applied and the doctor and the hospital were held liable.

Transfusion of blood of a wrong group.—In R.P. Sharma v. State of

Rajasthan4, the petitioner's wife, Smt. Kamla Sharma, was operated for removal
of gallstone in SMS Hospital, Jaipur. The doctor advised transfusion of blood
group O+ve to the patient. One bottle of the same blood group was transfused.
After that another bottle of blood was obtained from the blood bank. Due to
negligence of the Hospital staff the new bottle was of another blood group i.e.
B+ve. Soon after the transfusion of this blood she lost her eyesight and later on
died. The defendant was vicariously liable for the negligence of the hospital staff.

9.3. Doctor's duty and secrecy

In Dr. Tokugha v. Apollo Hospital Enterprises Ltd.5, the plaintiff's marriage

proposed to be held on 12-12-95 with Ms. Akli was called-off because of the
disclosure by Apollo Hospital to Ms. Akli that the plaintiff was HIV(+).

___________________________

1. MANU/TN/0422/2000 : AIR 2000 Mad 305. See also State of Punjab v. Shiv

Ram, MANU/SC/0513/2005 : AIR 2005 SC 3280 where the claimants opts for bearing child despite

failure of operation, cannot claim compensation in the deserve of negligence of the doctor.

2. See also, Satish Chandra Shukla v. Union of India, 1997 ACJ 626; Venkatesh V. Iyer v. Bombay Hospital
 Trust, MANU/MH/0279/1998 : AIR 1998 Bom 373; Suraj Mal Chhajer v. State of

Rajasthan,MANU/RH/0187/1999 : AIR 1999 Raj 82; M. Sobha v. Dr. Raj Kumari

Unithan, MANU/KE/0486/1999 : AIR 1999 Ker 149.

3. MANU/TN/0424/2000 : AIR 2000 Mad 340.

4. MANU/RH/0264/2002 : AIR 2002 Raj 104.

5. MANU/SC/0733/1998 : AIR 1999 SC 495.

The plaintiff claimed damages from the defendant on the ground that they
violated the rule of secrecy under medical ethics. The court held that the rule of
secrecy is subject to the exception when circumstances demand disclosure of the
patient's sickness in public interest, particularly to save others from immediate
and future health risks. Here the plaintiff would have been infected with the
dreaded disease if the marriage had taken place and consumated. The appeal
was dismissed.

9.4. English law

In England, a doctor who acts in accordance with a practice accepted as proper

by a responsible body of medical men, is not negligent merely because there is a
body of opinion that takes a contrary view. In the case of Bolam v. Friern
Hospital Management Committee,1 it was observed, by McNair J., that "the test
is the standard of the ordinary skilled man exercising and professing to have
that special skill. A man need not possess the highest expert skill; it is well-
established law that it is sufficient if he exercises the ordinary skill of an ordinary
competent man exercising that particular art. In the case of medical man,
negligence means failure to act in accordance with the standards of reasonably
competent men at the time. There may be one or more perfectly proper
standard, and if he conforms with one of these proper standards, then he is not
negligent." The aforesaid test of McNair J., has been repeatedly approved by the
House of Lords2. This test covers the entire field of liability of a medical man,
namely, (a) liability in respect of diagnosis,3 (b) liability in respect of doctor's
duty to warn his patient about the risk inherent in the treatment4. (c) liability in
respect of operating upon or giving treatment involving physical force to a
patient who is unable to give his consent5, and (d) liability in respect of
treatment.6

_________________________

1. (1957) 2 All ER 118.

2. See, Whitehouse v. Jordon, (1981) 1 All ER 267 (277) (HL); Maynord v. West Midlands Regional Health

Authority, (1985) 1 All ER 635 (HL); Sidaway v. Bathlem Royal Hospital, (1985) 1 All ER 643 (HL); See also
 Roe v. Minister of Health, (1954) 2 QB 66; Ram Behari Lal v. Dr. J.N. Srivastava, 1965 ACJ 424 (MP); Dr.
P.N. Rao v. G. Jayaprakasu, MANU/AP/0039/1990 : AIR 1990 AP 207.

3. Maynard v. Midlands R.H. Authority, (1981) 1 All ER 635 (HL). See also, Venkatesh v. B.R.H. Governors,

(1985) 1 All ER 643 (HL).

4. Sidaway v. B.R.H. Governors, (1985) 1 All ER 643 (HL).

5. F. v. W.B. Health Authority, (1989) 2 All ER 545 (HL).

6. White House v. Jordan, (1981) 1 All ER 267 (HL); Poonam Verma v. A.

Patel, MANU/SC/0530/1996 : AIR 1996 SC 2111 where a Homeopath prescribed Allopathic drugs

and the patient died. He is per se guilty of negligence and liable.

© Universal law Publishing Co.

   

CHAPTER 15

NERVOUS SHOCK

SYNOPSIS

1. Introduction

2. Meaning and Principles

3. Conclusion

1. Introduction

This branch of law is of recent origin and provides relief to a person who is injured, not
by physical impact, but by what he saw or heard from his own senses. As our Indian law
is based on common law1 and there being no case directly on the point, we have to
discuss English cases to trace out the origin and development of the principles
governing the liability for nervous shock.

2. Meaning and Principles

Nervous shock is a shock to nerve and brain structures of the body. Before 1896, the
law took cognizance only of physical injury resulting from actual impact. In other words,
if there was any bodily injury through nervous shock, but without physical impact, no
action would lie. A case worth mentioning on this point is of Victorian Railway
Commissioners v. Coultas2. In this case the facts briefly were that the appellant's
gatekeeper negligently invited the plaintiff and his wife, who were driving in a buggy, to
enter the gate at a crossing when the train was approaching, and, though there was no
actual collision with the train, the escape was so narrow and the danger so alarming,
that the lady fainted and suffered a severe nervous shock, which produced illness and
miscarriage. It was held by the Privy Council that "damage arising from mere sudden
terror unaccompanied by any physical injury but occasioning a nervous or mental shock
cannot under such circumstances be considered a consequence which in the ordinary
course of things would flow from negligence of the gate keeper..."3

_________________________

1. Except where it is unsuitable to local conditions or where it has been modified by the Indian Legislature.
See, for example, Surendra Kumar v. Distt. Board, Nadia, MANU/WB/0207/1941 : AIR 1942 Cal

360; Halligue v. Mohansundaram, MANU/TN/0341/1951 : AIR 1951 Mad 1056. See also S.P. Singh

The Meaning & Definition of Tort, (1972) II Andh WR 44, and S. Ramaswami Iyer The Law of Torts, 6th

Edn., p. 2; S.P. Singh Nervous Shock & Tortious Liability, The Indian Advocate, 1973, No. 3 and 4, p. 81.

2. (1888) 13 App Cas 222.

3. Ibid., p. 225.

Thus, in this case it was held that the damage was too remote to be recovered since
there was no actual bodily impact. But starting from 1896 with the Pugh decision 1 which
found its express confirmation in 1901 in Dulieu v. White 2, an important development
took place and the crude view that the law should take cognisance only of physical
injury resulting from actual impact was clearly discarded on the ground that the nervous
shock accompanied by definite illness is as much a physical injury as a broken bone or a
torn flesh wound. But damages cannot be given for the mere sensation of fear or
mental distress, for, there will be fraudulent claims.3

In Dulieu v. White, which is regarded as most important case in the development of

tortious liability for nervous shock4, the facts were that the plaintiff, a pregnant woman,
was standing behind the bar of her husband's public house, and the defendants, by
their servants, negligently drove a pair horse van into that house. The plaintiff was not
physically injured, but she suffered shock which resulted in serious illness and the
premature birth of her child. It was contended on behalf of the defendant that no action
for negligence would lie where there was no immediate physical injury to the plaintiff.
Kennedy J., holding the defendant liable stated:

"... merely mental pain unaccompanied by any injury to the person cannot
sustain an action of this kind.…and...damage is an essential element in a right of
action for negligence. If the fear is proved to have naturally and directly
produced physical effects, so that the ill results of the negligence which caused
the fear are as measurable in damages as the same results would be if they
arose from an actual impact, why should not an action for those damages lie just
 as well as it lies where there has been an actual impact."5

______________________

1. See Pugh v. London Brighton & Sought Coastory Co., (1896) 2 QB 248. In this case injury by nervous

shock was treated as an accident under the insurance law. See also Smith v. Johnson an unreported case

quoted by Kennedy J., in Dulieu v. White, cit, infra.

2. (1901) 2 KB 669.

3. A similar approach was followed in India by the Nagpur High Court in 1939 when it was held that a

mental perturbation or emotion described as worry caused by the opposite party is of too trivial nature to

be regarded seriously as an injury in the legal sense of the term. See, Dipchand v. Manak Chand, AIR 1939

Nag 154.

4. An other important case of Nervous shock caused by wilful tort and not by negligent tort, is that of

Wilkinson v. Downton, decided in 1897. This case in reality exploded the old English law. The facts briefly

were that the defendant, by way of joke falsely told the plaintiff that her husband had been seriously

injured in an accident. Plaintiff suffered nervous shock accompanied by serious illness. Wright J., stated

"Every one has a legal right to his personal safety, and that it is a tort to destroy this safety, by wilfully

giving false statements and thereby to cause a physical injury to the sufferer. "He laid down the principle

that wilful false statement must be such as is calculated to cause harm. [(1897) 2 QB 57].

5. See also an Indian case, Halligue v. Mohansundram, MANU/TN/0341/1951 : AIR 1951 Mad 1056

where a similar approach has been followed. It was observed by Mack, J., 

that damages can be claimed on the basis of nervous shock directly attributable to
negligence and "Indian case law based on old English decisions should in this domain of
law have a similar orientation." Ibid., p. 1060; See also Dipchand v. Manak Chand, op.
cit. In this case it was held that a mental perturbtion or emotional excitement described
as a worry is not an injury in the legal sense of the term; See also Governor General in
Council v. Surajmal, MANU/NA/0051/1948 : AIR 1949 Nag 256.

The contention of the defendant that the bodily harm in the present case is too remote
a consequence of the negligence of the defendant's servant and the principles
enunciated in the case of Victorian Railway Commissioners' case should be extended
was rejected by the court. Kennedy J., stated:

"It will be seen on a reference to the report of that case (i.e., Victorian Railways
Commissioners v. Coultas) that while the judgment of the Privy Council proceeds
mainly upon the view that the damages are too remote, it does also claim
justification from the argument of public policy and the danger which would arise
from a contrary decision on account of wide field opened for imaginary claims.
Naturally one is diffident of one's opinion when one finds that it is not in accord
with those which have been expressed by..........judicial authorities. But,
 certainly, a claim for damages for physical injuries naturally and directly
resulting from nervous shock which is due to negligence of another in causing
fear of immediate bodily hurt is in principle not too remote to be recoverable in
law. I should be sorry to adopt a rule which would bar all such claims on ground
of public policy alone, and to order to prevent the possible success of
unrighteous or groundless actions. Such a course involves the denial of redress
in meritorious cases, and it necessarily implies a certain degree of distrust,
which I do not share, in the capacity of legal tribunals to get at the truth in this
class of claims."

Justice Kennedy then introduced a limitation of liability by stating that "the shock where
it operates must be a shock which arises from a reasonable fear to immediate personal
injury to oneself."

It would thus be seen that in Dulieu's case the old view of English case law that the
damage due to nervous shock is too remote a consequence for recovery, was exploded
by Justice Kennedy on the ground that the adoption of such a rule, which is based on
public policy and the fear of possibility of fraudulent claims, would result in the denial of
meritorious claims. He added that it necessarily implies distrust in the capacity of the
courts to get at the truth in this class of claims. Accordingly, Justice Kennedy held that
the defendant's negligence would make him liable if the natural and direct consequence
is nervous shock followed by illness, subject to the condition that the shock must have
been due to reasonable fear of one's own personal safety. However, it is submitted that
the limitation imposed by Kennedy J. would certainly have proved an effective limit on
the scope of liability, but it is intellectually unsatisfying. The principles enunciated by
Kennedy J. were accepted by later decisions but the limitation that the shock must have
been due to fear of one's own personal safety, was decisively rejected by a majority of
the Court of Appeal in 1925 in the case of Hambrook v. Stokes Bros.1

In Hambrook's case2 the facts were that the defendant's servant left a motor lorry at
the top of a steep street unattended, with the engine running. The lorry started by,
itself and ran violently down the incline. Mrs. Hambrook, the plaintiff's wife, who had
been walking up the street with her children had just parted with him a little below a
point where the street made a bend, when she

_____________________________

1. (1925) 1 KB 141.

2. Ibid.

saw the lorry rushing round the bend towards her. She became frightened for the safety
of her children, who by that time were out of sight round the bend and at about 300
yards. away from her. She was immediately told by a bystander that a child answering
the description of one of her's had been injured. In consequence of her fright and
anxiety, she suffered a serious nervous shock which eventually caused her death. It was
argued on behalf of the plaintiff that the shock to his wife was due either to a
reasonable fear of immediate personal injury to herself, or alternatively, of injury to her
children, and that her death was the result of shock. In defence, it was contended that
although the defendant's servant was negligent, but the shock was due to fear of injury
to her children, which did not give rise to a cause of action.

The trial court found that she died due to fright for the safety of her children and
delivered the judgment in favour of the defendant, following the limitation introduced by
J., Kennedy in Dulieu v. White. But on appeal, Bankes and Atkin L. JJ., held that the
defendant was liable for her death and rejected the limitation proposed by Justice
Kennedy in the following words:

"Accepting the line of reasoning illustrated by authorities, it follows that what a

man ought to have anticipated is material when considering the extent of his
duty. Upon the authorities as they stand, the defendant ought to have
anticipated that if his lorry ran away down this narrow street, it might terrify
some woman to such an extent, through fear of some immediate bodily injury to
herself, that she would receive such a mental shock as would injure her health."1

And a little later Justice Bankes stated:

"Assume two mothers crossing this street at the same time when this lorry
comes thundering down, each holding a small child by the hand. One mother is
courageous and devoted to her child. She is terrified, but thinks only of the
damage to her child and not at all about herself. The other mother is timid and
lacking in the motherly instinct. She also is terrified, but thinks only of the
damage to herself and not at all about her child. The health of both mothers is
seriously affected by the mental shock occasioned by the fright. Can any real
distinction be drawn between the two cases? Will the law recognise a cause of
action in the case of the less deserving one? Does the law say that the
defendant ought reasonably to have anticipated the nonnatural feeling of the
courageous mother. I think not. In my opinion the step which the court is asked
to take under the circumstances of the present case necessarily follows from an
acceptance of the decision in Dulieu v. White and I think, that the dictum of
Kennedy J., laid down in quite general terms in that case cannot be accepted as
good law applicable in every case."2

_______________________________

1. Hambrook v. Stokes Bros, (1925) 1 KB 150.

2. Ibid., p. 150. Similarly Atkin L.J., also observed that "I can find no principle to support that the
 selfimposed restriction stated in the judgment of Kennedy J., in Dulieu v. White, that the shock must be a

shock which arises from a reasonable fear of immediate personal injury to oneself. It appears to me

inconsistent with the decision in Pugh v. London Brighton and South Coastory Co., (1896) 2 QB 248 and

with the decision in Wilkinson v. Downton, (1897) 2 QB 27, in neither of which cases was the shock the

result of the apprehension of injury to the plaintiff." Ibid., p. 163.

Having thus rejected the proposed limitation of Justice Kennedy, the Court of Appeal
substituted a different one which have enlarged the area of tortious liability for nervous
shock and, if accepted, will at least have the effect of restricting liability for shock to
persons in the general vicinity of the accident. Justice Bankes, however, imposed a
limitation by stating that "the defendant would be liable only if the shock resulted from
what Mrs. Hambrook either saw or realised by her own unaided senses, and not from
something which some one told her."1 This, however, cannot be justified on the ground
that shock following the report of an accident is always unforeseeable. No doubt it does
provide a reasonable means of drawing a line for the practical purposes of the law, but
it is a derogation from the general principles of negligence which is called for by the
elements of subtlety which exist in cases of nervous shock. However, it should be noted
that in Hambrook's case there was an acceptance of negligence in the pleadings, and
this meant that the breach of a duty owed to Mrs. Hambrook was admitted by the
defendant. It was not, therefore, necessary for the court to consider the circumstances
in which a duty of care exists in cases of nervous shock. 2 Apart from this, even if
limitation of Dulieu's case is rejected and that of Hambrook's case accepted, there
remains the vital question whether a person who witnesses an accident and suffers in
consequence, but is himself in no personal danger, can recover. The relevant and the
only case decided by the House of Lords is of Hay or Bourhill v. Young.3

In this case the facts were that the appellant, Mr. Euphemia Bourhill, formerly Hay,
alighted from a tramcar The driver of the tramcar was helping her to put her fish basket
on her back. At that time John Young, a motorcyclist, passed the train and immediately
afterwards negligently collided with a motor car. John Young was killed. The appellant
did not see John Young or the accident, which occurred about fifty feet away, her view
was being obstructed by the tram, but she heard the collision. When Young's body had
been removed, she approached the spot of accident and saw the blood left on the
roadway. In consequence she sustained nervous shock and gave birth to a premature
child of which she was eight months pregnant. She sued the personal representatives of
Young for his negligence. Her plea was that she had sustained loss, injury and damage
through the fault of the said John Young and that she was entitled to reparation out of
his estate. The House of Lords, holding the defendant not liable considered the aspect of
duty.

Lord Thankerton stated that the duty of a motorcyclist is to drive his motor cycle "with
such reasonable care as will avoid the risk of injury to such persons as he can
reasonably foresee might be injured by failure to exercise of such reasonable care. It is
now settled that such injury includes injury by shock, although no direct physical impact
occurs. If then, the test of proximity or remoteness is to be applied, I am of opinion that
such a test involves that the injury must be within that which the cyclist ought to have
reasonably

____________________________

1. Hambrook v. Stokes Bros, (1925) 1 KB 152.

2. Atkin J., nevertheless considered that a duty was made out on the facts, apart from the admission in the

pleadings, (1925) 1 KB 158.

3. 1942 AC 92.

contemplated as the area of potential danger which would arise as the result of his
negligence..."1

Lord Thankerton then distinguished the present case with that of Hambrook's case and
held that the present case does not come within the ambit of the above rules in the
following words:

"Although, admittedly going at an excessive speed, the cyclist had his machine
under his control and this at once distinguishes this case from such cases as
those where the motor has been left standing unoccupied and insufficiently
braked, and has started off as an uncontrolled carrier I am clearly of opinion that
in this case, the shock resulting to the appellant........... situated as she was not
within the area of potential danger which the cyclist should reasonably have had
in view."2

Lord Macmillan considered the duty of a motorcyclist and stated that "the duty of a
driver is to use proper care not to cause injury to persons on the highway or in
premises adjoining the highway. Proper care connotes avoidance of excessive speed,
keeping a good lookout, observing traffic rules and signals and so on. Then, to whom is
duty owed?...To persons so placed that they may reasonably be expected to be injured
by the omission to take such care!" In the present case "the appellant did not see the
accident and she expressly admits that her terror did not involve any element of
reasonable fear of immediate bodily injury to herself. She was not so placed that there
was any reasonable likelihood of her being effected by the cyclist's careless driving. In
these circumstances I am of opinion that the late John Young was under no duty to the
appellant to foresee that his negligence in driving at excessive speed and consequently
colliding with a motor-car might result in injury to her, for such a result could not
reasonably and probably be anticipated. He was, therefore, not guilty of negligence in a
question with the appellant..."3

Lord Wright stated that "I cannot accept that John Young could reasonably have
foreseen, or, more correctly, the reasonable hypothetical observer could reasonably
have foreseen, the likelihood that any one placed as the appellant was, could be
affected in the manner in which she was. In my opinion, John Young was guilty of no
breach of duty to the appellant, and was not in law responsible for the hurt she
sustained. I may add that the issue of duty or no duty is, indeed, a question for the
court, but it depends on the view taken of facts. In the present case both courts below
have taken the view that the appellant has, on the facts of the case, no redress and I
agree with their view..."4

__________________________

1. Hay or Bourhill v. Young, 1942 AC 92.

2. Ibid., p. 99.

3. Ibid., p. 104.

4. Ibid., p. 110. He further stated that "the present case, like many others of this type, may, however raise

the different question whether the appellant's illness was not due to her peculiar susceptibility. She was

eight months gone in pregnancy. Can it be said apart from everything else, that it was likely that a person

of normal nervous strength would have been affected in circumstances by illness as the appellant was?

Does the criterion of reasonable foresight extend beyond people of ordinary health or suspectability, or

infirmities of those affected which the defendant could not reasonably be taken to have foreseen? But the

manner of conduct adapt itself of such special individual peculiarities? If extreme cases are taken, the

answer appears to be fairly clear, unless, indeed, there is knowledge of the extraordinary risk." Ibid., p.

111.

Lord Porter stated that "in order to establish a duty towards herself the appellant must
show that the cyclist should reasonably have foreseen emotional injury to her as a
result of his negligent driving, and, as I have indicated, I do not think she has done
so."1

It would thus be seen that all the Law Lords held that there had been no breach of duty
to the plaintiff because no injury to her could reasonably have been foreseen and on
this basis the above question can be answered that a normal healthy person, who is
himself in no personal danger but suffers shock, can recover. But I hasten to add that
this may not be the true position, for, two of the Law Lords, Lord Thankerton and Lord
Macmillan, held that the appellant must be within the area of `potential danger',
whereas Lord Wright and Lord Porter considered the aspect of injury and duty on the
basis of reasonable foresight.2 On the basis of this decision, however, it can be said with
some certainty that a plaintiff can recover for nervous shock only if he was so placed
that a physical injury to him could have been reasonably foreseen. In other words, the
plaintiff can recover damages for nervous shock caused by the injury to another due to
defendant's negligence provided he is within the area of potential danger and that if it
was reasonably foreseeable that a normal healthy person placed in the plaintiff's
position would have got such a shock.

But the question of damages for those who are normal healthy persons and get nervous
shock, although not within the area of potential danger, remains in the dark. The only
case3 worth mentioning in this area is of King v. Phillips.4 decided by the Court of Appeal
in 1953.

In King v. Phillips the facts were that on August 2, 1951, a small boy, Micheal Charles
King, was on his tricycle in Bristall Road, London. A taxicab driver negligently backed his
taxicab into the small boy on a tricycle. The injury to the boy and his tricycle was slight.
The child's mother, who was in her house seventy or eighty yards away, heard him
scream, and, looking out of a window, saw the tricycle under the taxicab, but she could
not see the child who eventually ran

_______________________

1. Bourhill v. Young, cit, Ibid.

2. Lord Russell of Killoven in the present case expressed no clear opinion but he, it seems, prefers the test

of reasonable foresight. He stated that 

"in considering whether a person owes to another a duty, a breach of which will render him liable

to that other in damages for negligence, it is material to consider whether the defendant ought to

have contemplated as reasonable man..." In the present case "the appellant was not within his

vision but was standing behind the solid barrier of the tramcar. His speed in no way endangered

her. In these circumstances, I am unable to see how he could reasonably anticipate that the

resultant noise would cause physical injury by shock to a person standing behind the tramcar. In

my opinion he owed no duty to the appellant, and, was, therefore, not guilty of any negligence in

rotation to her ..." Ibid., p. 101.

3. Another case is of Dooley v. Cammell Laird & Co., (1951) 1 Lloyd's Rep 271. In this case defendant's

negligence led to the breaking of a rope which resulted in the fall of a load in the hold of a ship where men

were working. The plaintiff was the driver of the crane and himself in no danger but suffered shock from

witnessing the danger to the men in the hold. The court clearly denied the requirement of physical danger

to the plaintiff, it was held that there was a breach of duty to the plaintiff because the defendant should

have had him in contemplation as likely to be affected if the rope broke; See also Boardman v. Sanderson,

(1964) 1 WLR 1317.

4. 1953 KB 669.

home. She suffered nervous shock followed by illness and for which she claimed
damages. The lower court awarded damages to the boy amounting to £ 10, but
dismissed the claim of the mother. On appeal, the Court of Appeal, affirmed the
judgment of the lower court and held that the defendant owed a duty of care to the boy
and not to the mother. Although the judges of the Court of Appeal reached on one
conclusion, but they disagreed in the theoretical basis of this conclusion.

Singleton L.J., stated that "the decision of the House of Lords in Bourhill v. Young shows
that the test in such cases is whether the driver could reasonably have foreseen any
damage to the plaintiff. Unless he could, it was said, no duty was owed to her, and
consequently there was no negligence visavis the plaintiff. I find it difficult to draw a
distinction between damage from physical injury and damage from shock. Prima facie,
one would think that if a driver should reasonably have foreseen either, and damage
resulted from the one or from the other, the plaintiff would be entitled to succeed ...
And, in the words of McNair J., "if I am asked where the line is to be drawn, I should
humbly reply.... it should be drawn where in the particular case the good sense of the
jury or judge decides."1

Denning L.J., stated, "The true principle is this: Every driver can and should foresee
that if he drives negligently, he may injure somebody in the vicinity in some way or
other; and he must be responsible for all the injuries which he does in fact cause by his
negligence to anyone in the vicinity, whether they are wounds or shocks, unless they
are too remote in law to be recovered. If he does by his negligence and infact causes
injury by shock, then he should be liable for it unless he is exempted on the ground of
remoteness."

He then distinguished this decision with that of Hambrook's case and stated:

"...I think that the shock in this case is too remote to be a head of damage. It
seems to me that during slow backing of the taxicab, the driver cannot
reasonably be expected to have foreseen that his backing would terrify a mother
70 yards away, whereas the lorry driver ought to have foreseen that a runaway
lorry might seriously shock the mother of children in the danger area."2

It would thus be seen that although the judges agreed in the result, they disagreed in
its theoretical basis of that result. Singleton L.J., took the view that there was no duty
on the part of the driver to anticipate emotional shock to the mother who was away
from the road. Denning L. J., on the other hand, stated that there was a breach of duty,
but the damage was too remote because it was not reasonably foreseeable. 3 Lord
Denning's judgment has been criticised by many authors. Prof. Goodhart says, this
reasoning is difficult to follow: "it is not immediately obvious why a mother should
receive less of a shock when she sees

______________________

1. King v. Phillips, (1953) KB 433.

2. Ibid.
 3. Hodson L.J. in this case, however, restricted the liability to the area of potential danger. He also stated

that had there not been acceptance of negligence in Hambrook's case, that would have been overruled by

the House of Lords in the case of Bourhill v. Young.

her child being slowly runover than when it is done rapidly." 1 Prof. Winfield says, "if the
fact was that no injury of any kind was foreseeable to the plaintiff as a consequence of
the actual negligence alleged against the driver, then, whether the test of remoteness is
directness or foreseeability, the decision should be that there was no breach of duty,
not that duty existed but that the damage was too remote."2

The criticism of Dr. Goodhart, it is submitted, seems untenable because there is a

difference in degree of danger between a motor-lorry thundering down without a driver
and the motorcar being driven by a driver slowly. Dr. Goodhart looks at the injuries
from the side of the two mothers who may get nervous shock in either case, but not
from the point of view of negligent actors who can only expect or foresee the extent and
character of physical injuries from the degree of danger created by them, which may
not be the same. This can be illustrated from the cases of King v. Phillips and Hambrook
v. Stokes Bros., cited above. In these cases, the two mothers were involved, both were
terrified and got nervous shock due to injury to their children, both the children were
injured by the motor vehicles, except with the difference that in one case the driver was
slowly backing the taxi and in the other case the motor-lorry was thundering down
without a driver. The difference in both these cases is that of the degree of danger;
and, the extent of defendant's reasonable foreseeability depends, among other factors,
on the degree of danger created by him i.e., the greater the danger, the more the
foreseeability. In the first case it was not so much foreseeable from the danger created
by the negligence of the taxi driver as it was from the danger in the case of uncontrolled
motor-lorry. In other words, the slow backing of the taxi was very different, from the
terrifying descent of the runaway lorry. "Slow backing" is an ordinary simple operation
in driving a motor car giving, more or less, no fright to by-standers; whereas the terrific
descent of a runaway lorry without a driver is a real cause of terror to anybody in the
vicinity. The taxicab driver, therefore, cannot reasonably be expected to have foreseen
that his slow backing would terrify a mother about 70 yards away, whereas the lorry
driver ought to have foreseen that a runaway lorry without a driver might seriously
shock the mother of children in the danger area.3

As regards `duty' or `no duty', Prof. Winfield has rightly observed, for, in the concept of
negligence as soon as it is proved that damage is foreseeable then there is a duty and if
it is not foreseeable then there is no duty and "not that a duty existed but the damage
was too remote". But the criticism of Winfield is immaterial from the resultant point of
view because, according to Denning L.J., also, a `duty' in any case is to be determined
on the basis of foreseeability. In

_________________________
 1. Goodhart Emotional shock and the unimaginative Taxicab driver, (1953) 69 Law Quarterly Review, 347

(354).

2. Winfield on Tort, (8th Edn.), p. 1124. See also Jolovies, (1960) Comparative Law Journal, p. 156.

3. See also, Boardman v. Sanderson, (1964) 1 WLR 131, where the degree of danger was almost the same

as in the case of King v. Philips, but father was very near to the boy and the negligent driver had the

knowledge of the presence of the father. Accordingly, the court held that the defendant, who negligently

backed the car into the small body, could reasonably have foreseen the injury to the father by shock. See

also Lord Thankerton in Bourhill v. Young supra, and Dooley v. Camme Laud & Co., supra.

other words, whether we adopt the test of Winfield or that of Denning L.J., the result
will come out the same. Nevertheless, if we look at the case, as then before the court
was, then by implication it can be inferred that Denning L.J., referred negligence in
reference to the boy but that negligence is not actionable in relation to the mother
because it was unforeseeable and therefore remote. In any case both the Judges,
Denning and Singleton, are in accord with the result and that they are also in accord
with the principle that the damage is taken into account on the basis of reasonable
foreseeability. Taking the decision in this light and the fact that they (except Hodson
L.J.) did not even refer to the `area of potential danger' for determining the range of
foreseeability, it can be said that if it was reasonably foreseeable that a normal healthy
person placed in the plaintiff's position would suffer nervous shock (followed by illness)
from what he saw or observed by his own unaided senses, then he can recover
damages from the negligent actor; or we can say that if the particular susceptibility to
shock of the plaintiff was known to the negligent actor, then he can recover.

But the above principle is subject to a caution, for, the decision of the two Law Lords
(Lord Thankerton and Lord Macmillan) in Bourhill v. Young that the defendant can
foresee only when the plaintiff is within the area of potential danger, is still a good law
and can be followed at any time unless it is overruled by the Law Lords themselves.
However, it is submitted that the test of foreseeability on the basis of plaintiff's
presence in the potential area of danger' is not good enough to include all genuine
claims. If this rule is followed then a person very near to, but not within, the area of
physical injury, may not recover, for, the defendant cannot legally foresee….., although
infact it could have been foreseen by him. It would, therefore, be unreasonable to follow
this test. Since the modern opinions are not in its favour1 and that the case of King v.
Phillips, subsequently decided by the Court of Appeal, also did not follow the test, it is
hoped that the limited test of foreseeability on the basis of "plaintiff's presence in the
area of physical danger" will not be strictly followed in future, particularly in the
presence of the opinions of the two Law Lords (Lord Wright and Lord Russell) in Bourhill
v. Young who simply laid down the test of reasonable foresight. Indian Law is also not
clear on this point. Not because of the conflicting opinions of the judges, but because of
the fact that such cases are yet to come before the courts. However, this much is clear
from the decided cases in this area that mere mental shock unaccompanied by illness is
not actionable2 and that the shock accompanied by illness which is `directly attributable
to negligence' will be actionable.3 Whether the shock which is `directly attributable to
negligence' will

__________________________

1. See, Winfield, op. cit., p. 125; Sinha, op. cit., p. 90; Anand & Sastri The Law of Torts, (1967 Edn.), p.

736; See also Dooley v. Cammel Laird & Co., op. cit., Boardman v. Sanderson, op. cit. It should, however,

be noted that this principle is in consonance with the principle laid down by the House of Lords in the case

of Donoghoue v. Stevenson, (1932) AC 562, and the Wagon Mound case, (1961) 1 All ER 401 (PC) decided

by the Privy Council.

2. Dipchand v. Manak Chand, AIR 1939 Nag 154.

3. See, Halligue v. Mohansundaram, MANU/TN/0341/1951 : AIR 1951 Mad 1056 where it has been

observed "I think that the trend of English case law having exploded the old view that damages cannot be

claimed on the basis of nervous shock directly attributable to negligence. Indian case law based on old

English decisions should in this domain of law have a similar orientation. "Ibid., p. 1060; See also

Governor-General in Council v. Surajmal, AIR 1942 Nag 256

be determined on the basis of `reasonable foresight' or `potential area of danger', is

yet to be seen. But considering the above points and the fact that Indian law is based
on English common law, it is hoped that courts will also follow the test of reasonable
foresight' which is atleast better than the test of `potential area of danger'.

However, it should be pointed out here that even if it is taken as granted that the test
of potential area of danger has been discarded and that of `reasonable foresight in the
vicinity' is accepted, there still remains a big problem where to draw a demarcation line
between foreseeability and unforseeability.1 It has been held and repeatedly approved
by the courts that it can be drawn "in the particular case (where) the good sense of the
Jury and Judge decides"2. It is submitted that the doctrine of foreseeability is an
inherently vague concept, particularly when the case of nervous shock is in issue 3. In
view of the vagueness in relation to nervous shock, at the present it is safest to say that
the Jury and Judges can base almost any conclusion on a finding of facts that shock was
or was not foreseeable in the circumstances. It is, therefore, upto the courts in India
and elsewhere, in the course of deciding cases in future, to give more colour to the
doctrine and create safe criteria for the inherently vague distinction between
foreseeability and unforeseeability.

Finding it difficult to apply the above vague rule of foreseeability, the House of Lords in
the case of Mcloughlin v. O'Brian4, made an exception to the area of reasonable
foresight, namely, that in certain circumstances it is not necessary that the plaintiff
must be present in the area of vicinity at the time of accident. The facts in Mcloughlin's
case were that in a road accident caused by the defendant's negligence, the plaintiff's
daughter was killed and her husband and two children were severely injured. At the
time of accident the plaintiff was at home which was two miles away. An hour later, the
accident was reported to her by a friend, who drove her to the hospital where she saw
the injured husband and children and heard about the death of her daughter. The
plaintiff suffered severe nervous

_________________________

1. See Mcloughlin v. O'Brian, (1982) 2 WLR 982, where a road accident caused by the defendant's

negligence killed the plaintiff's young daughter and caused severe injuries to her husband and children. At

the time the plaintiff was at home two miles away. An hour later the accident was reported to her by a

friend, who drove her to the hospital where she was told of the death and saw the injured member of her

family which resulted in serious nervous shock and illness. The House of Lords (L. Bidge, L. Scarman. L.

Wiberforce, L. Edmund Davies and Lord Russell) held the defendant liable but adopted the test of

reasonable foresight in different ways. It is, therefore, not easy to discern a clear ratio in this case.

2. See Singleton L.J., who quoted with approval the words of McNair J. in King v. Phillips, op. cit.; See, Lord

Wright in Bourhill v. Young, op. cit., where he observed "I may add that the issue of duty is, in deed, a

question for the court, but it depends on the view taken of facts."

See, Lord Denning M.R. in Cook v. Winfen, (1967) I WLR 457 (462), where he adopted the same, words.

He also seems to have interpreted them as referring to the good sense of the Jury or the Trial Judge, not

that of a appellate court.

3. For a detailed study, see also Winfield, op. cit., p. 125 & p. 126; Ramaswami Iyer, op. cit., pp. 3642;

Anand and Sastri, op. cit., pp. 72634. If some measure of certainty is desired, it can probably he achieved

by legislation, perhaps along the lines enacted in certain Australian States and Territories. See for e.g. the

Law Reform (Misc. Provisions) Act, 1944 (NSW) which gives a right of action for nervous shock to (a)

spouse of the person injured killed or put in peril and (b) other members of his family provided, in this

case, they were within sight.

4. (1982) 2 All ER 298 (HL).

shock and illness. The House of Lords in one voice (L. Bridge, L. Scarman, L.
Wiberforce, L. Edmund Davies and L. Russell) held the defendant liable for the injury by
nervous shock as it was a reasonably foreseeable consequence of the defendant's
negligence.1 It may be noted here that House of Lord in its earlier decision of Bourhill v.
Young2, held that the injured person should be at or near the scene of accident at the
time or shortly afterwards or within the area of potential danger. Yet the Law Lords held
the defendant liable on the ground of reasonable foresight although the plaintiff was far
away from the place of accident and she was told about the accident after one hour.
Why the defendant was held liable in Mclaughlin case was explained by the House of
Lords in another case of Alock v. Chief Constable of South-Yorkshire Police3 that plaintiff
in such kind of cases will have to show close relationship of love and affection with the
primary victim and also that his proximity to the accident was sufficiently close in time
and space. So in Alock's case where plaintiffs, who suffered nervous shock when
disaster at a football match was televised live and in news bulletins but without
depicting the suffering or dying of recognisable individuals, were held not entitled to
damages.

Similarly, in Page v. Smith4, the House of Lords held the defendant liable for negligence
not on the basis of reasonably foreseeable type of injury to the plaintiff but on the basis
of a principle that tortfeasor must take his victim as he finds him.5 In Smith's6 case the
facts were that the plaintiff, though directly involved in a motor accident, remained
physically unhurt but suffered `Myalgic Encephalomyelitis' a psychiatric illness with
which he had earlier suffered but which was then in remission. The injury which the
plaintiff suffered as a result of the accident was not foreseeable in a `person of normal
health' but as a personal injury of physical harm (which actually did not occur) was
foreseeable, the defendant was held liable for damages. After holding the defendant
liable, the House of Lords laid down the following important propositions which may be
taken as guiding factors in deciding such kind of cases: "(1) In cases involving nervous
shock, it is essential to distinguish between the primary victims and secondary victims.
(2) In claims by secondary victims the law insists on certain control mechanisms, in
order as a matter of policy to limit the number of potential claimants. Thus, the
defendant will not be liable unless psychiatric injury (injury by nervous shock) is
foreseeable in a person of normal health. These control mechanism have no place where
the plaintiff is the primary victim. (3) In claims by secondary victims, it may be
legitimate to use hindsight in order to be able to apply the test of reasonable
foreseeability at all. Hindsight, however, has no part to play where the plaintiff is the
primary victim. (4) Subject to the above qualifications, the approach in all cases should
be the same, namely, whether the defendant can reasonably foresee that his conduct
will expose the plaintiff to the risk of personal injury, whether physical or injury by
nervous shock. If the answer is yes, then the duty of care is established, even though

__________________________________

1. (1982) 2 All ER 298 (HL).

2. Discussed supra.

3. (1991) 4 All ER 907 (HL).

4. (1995) 2 All ER 736 (HL).

5. See also Chapter `Remoteness of Damage', discussed supra.

6. (1995) 2 All ER 736 (HL).

physical injury does not, in fact, occur. There is no justification for regarding physical
and psychiatric injury as different kinds of damage. (5) A defendant who is under a duty
of care to the plaintiff, whether as primary or secondary victim, is not liable for
damages for nervous shock unless the shock results in some recognised psychiatric
illness. It is no answer that the plaintiff was predisposed to psychiatric illness. Nor is it
relevant that the illness takes a rare form or is of unusual severity. The defendant must
take his victim as he finds him.1

It may be noted that the defendants' negligence would make him liable if an injury by
nervous shock was caused to a man who came upon a scene of serious accident for
acting as a rescuer though the persons involved in the accident did not include any near
relative.2 A mere bystander not in the vicinity of danger zone and who suffers injury by
nervous shock cannot recover damages from the defendant. 3 In the case of Attia v.
British Gas Pic.,4 it has also been held that the defendant will be liable where the
plaintiff suffered injury by nervous shock by witnessing destruction of his property
caused by the defendant's negligence e.g. in starting a fire, provided that the
psychiatric damage (injury by nervous shock) was reasonably foreseeable consequence.

3. Conclusion

Thus, as has been seen above, it is because of the vagueness of the rule of
foreseeability, the house of Lords faced a lot of difficulty and, therefore, laid down some
qualifications to the ride of reasonable foresight in certain cases viz., (a) where
secondary victim have close relationship of love and affection with the primary victim
and also that his proximity to the accident was sufficiently close in time and space;5 (b)
In case of secondary victims, it may be legitimate to use hindsight in order to be able to
apply the test of reasonable foreseeability at all;6 and (c) Tortfeasor must take his
victim as he finds him.7 However, subject to the aforesaid qualifications, the approach in
nervous shock cases should be the same, namely, whether the defendant can
reasonably foresee that his conduct will expose the plaintiff to the risk of personal
injury, whether physical or injury by nervous shock.8If the answer is in affirmative, then
the duty of care is established and the defendant will be liable for the injury to the
plaintiff.

It is submitted that in view of the vagueness of the rule of reasonable foreseeability in

relation to nervous shock, some measure of certainty can probably be achieved by
legislation, perhaps along the lines enacted in certain Australian States.9

______________________

1. (1995) 2 All ER 767 (HL).

2. Chadwick v. B.T. Commission, (1967) 1 WLR 912.

 3. McFarlane v. E.E.C. Ltd., (1994) 2 All ER I (CA).

4. (1987) 3 All ER 455 (CA).

5. Mcloughlin v. O'Brian, (1982) 2 All ER 298 (HL); Alock v. Chief Constable of South Yorkshire Police,

(1991) 4 All ER 904 (HL).

6. Page v. Smith, (1995) 2 All ER 736 (HL).

7. Ibid; See also, Smith v. Leech Brain & Co., (1962) 2 QB 405; George William Bumba v. Phillip Okech, E.

Veitch East African cases on the Law of Tort, p. 39.

8. Page v. Smith, supra.

9. See Law Reform (Misc. Provisions) Act, 1944 (NSW).

© Universal law Publishing Co.

   

CHAPTER 16

CONTRIBUTORY NEGLIGENCE

SYNOPSIS

1. Introduction

2. Apportionment of damages

3. Doctrine of alternative danger and contributory negligence

4. Contributory negligence of children

5. Doctrine of identification

6. Burden of proving contributory negligence

7. Composite negligence

7.1. Nature of liability in composite negligence

8. Distinction between contributory negligence and composite negligence

9. Distinction between Negligence and Contributory Negligence

1. Introduction
Contributory negligence is negligence in not avoiding the consequence arising from the
defendant's negligence, when plaintiff has means and opportunity to do so. In fact, it is
the nonexercise by the plaintiff of such ordinary care, diligence, and skill, as would have
avoided the consequences of the defendant's negligence. It, therefore, means that in
the case of contributory negligence both the parties (plaintiff and defendant) are
negligent. Lord Halsbury has stated that the rule of contributory negligence is based on
the maxim `in pari delicto potior est conditio defendantis which means where both
parties are equally to blame, neither can hold the other liable. This much is justified in
accordance with the natural justice also, that where both the parties are equally
negligent, neither can hold the other liable. But the question arises where both the
parties are not equally at fault then what is the criteria of holding the defendant liable?
In English law the rule of contributory negligence was demonstrated for the first time in
1809 in the case of Butterfield v. Forrester.1

The facts were that the defendant, for the purpose of making some repairs to his house,
wrongfully obstructed a part of the highway by putting a pole across it. The plaintiff,
who was riding on his horse very violently on the road in the evening collided against
the pole and was injured. It was also found as a matter of fact that there was sufficient
light and the pole was visible from a distance of 100 yards. The court held that the
plaintiff had no cause of action against the defendant as he himself could have avoided
the accident by exercising due care. Ellenborough C.J., stated that "a party is not to
cast himself

____________________________

1. (1809) 11 East 60.

upon an obstruction which has been made by the fault of another, and avail himself of
it, if he does not himself use common and ordinary caution to be in the right. One
person in fault will not dispense with another's using ordinary care for himself."1

The above rule caused a great hardship to the plaintiff because he may lose an action
for a slight negligence on his part even if the defendant's negligence was the main
cause of damage to the plaintiff. In such circumstances a new development took place
and the court modified the law by introducing `last opportunity rule'. An important case
of Devis v. Mann2 illustrates this rule.

The facts briefly were that the plaintiff left his donkey with its forelegs tied in a narrow
public street. The defendant coming with his wagon at a smart pace negligently ran
over and killed the donkey. The court held the defendant liable because he had the last
opportunity to avoid the accident by the exercise of ordinary care i.e., by going at such
a pace as would be likely to avoid the mischief. It was observed by the court that
"although the animal may have been wrongfully there, still the defendant was bound to
go along the road at such a pace as would be likely to prevent mischief. Were this not
so, a man may justify the driving over goods left on public highway, or even over a man
lying asleep there, or purposely running against a carriage going on the wrong side of
the road."

The above case was approved by the House of Lords in Radley v. L. & R.W. Rly3, where
the plaintiffs were the colliery proprietors and they also owned a bridge near the aiding
under which trucks loaded with coal used to be taken by the defendants. One day the
plaintiffs loaded a truck so high that the same was obstructed by the bridge. Without
trying to see what caused the obstruction, the defendant's servants gave momentum to
the engine. Yet it could not pass under the bridge. The defendant's servant then got the
overloaded truck pushed by many other trucks of the defendants to make the truck
pass under the bridge. Consequently the bridge was knocked down. In spite of the
negligence on the part of the plaintiffs in overloading the truck, the House of Lords held
the defendants liable because they had the last opportunity to avoid the accident by the
exercise of ordinary care.

To the same effect is the decision of the House of Lords in another important case of
British Columbia Electric Co. v. Laoch.4

The facts of the case were that Mr. Hall took Mr. Sands with him in a cart. They drove
together on to the level crossing and did not care to see whether any tram car was
coming on the fine. The driver of the tram car saw this when he was 400 feet away
from the crossing and at once applied the brakes but the tram could not be stopped as
the brakes were defective. The tram car knocked the cart, horses and men over, and
ran some distance beyond the crossing before it could be stopped. It was found by the
jury that the tram car was running at an

__________________________

1. (1809) 11 East 65.

2. (1882) 10 M&W 546.

3. 1876 AC 759.

4. (1816) 1 AC 719.

excessive speed and if the brakes were in order, the tram would have stopped even
before the crossing. On the other hand, the jury also found Mr. Sands guilty of
negligence in not looking out to see that the line was clear. In an action by the personal
representative of the deceased, the defendants pleaded the defence of contributory
negligence. It was held by the House of Lords that they could not take the defence of
contributory negligence because they had the last opportunity to avoid the accident.
Accordingly, the defendants were held liable.
From the above cases, it is clear that if the defendant had the last opportunity to avoid
the accident he would be liable inspite of the fact that the plaintiff was also negligent.
But if the plaintiff had the last opportunity to avoid the accident, the defendant would
not be liable even if he was negligent. The aforesaid last opportunity rule apparently
seems to be all right. But in reality it is very unsatisfactory because in each case it
entails either exclusive liability or no liability although the other party is found to be
negligent.1Accordingly, the British Parliament passed the Law Reform (Contributory
Negligence) Act in 1945 wherein it has been provided that if both the parties are
negligent, the damages are to be apportioned in accordance with the degree of their
fault.2 The change brought about by the Law Reform (Contributory Negligence) Act,
1945 is just and equitable. In India there is no central legislation corresponding to Law
Reform (Contributory Negligence) Act, 1945 and therefore our judges are bound to
follow the common law of England.3i.e., last opportunity rule and not the law made by
the British Parliament. Yet the Indian High Courts, except Kerala4, veered away from
that binding and followed the law enacted by the British Parliament in the Law Reform
(Contributory Negligence) Act, 19455. A few cases of the various High Courts6, which
followed the rule of apportionment of damages, may be mentioned here.

2. Apportionment of damages

In Vidya Devi v. M.P. State Road Transport Corp.7, a motor cyclist negligently dashed
against a bus and was killed in the accident. The bus driver was also

_________________________________

1. See also S.P. Singh, Volenti non fit injuria and Tortious Liability, JILI (1975), Vol. 17: 1, p. 98.

2. Section 1(1) of the Law Reform (Contributory Negligence) Act, 1945 provides "where any person suffers

damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim

in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage,

but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and

equitable having regard to the claimant's share in the responsibility for the damage.

3. Unless it is not suitable to our local conditions or where our legislature has changed the law. See S.P.

Singh, II Andhra Weekly Reporter, 1972.

4. The Kerala Legislature has taken a lead by passing the Kerala Torts (Miscellaneous Provisions) Act in

1976, wherein section 8 incorporates the similar provisions contained in Sec. 1 of the Law Reform

(Contributory Negligence) Act, 1945 i.e., the apportionment of liability in contributory negligence.

5. It may be because our Parliament has not yet given a thought about this unjust law and therefore the

legislation has not been done on the lines of British Act.

6. There is no decision of the Supreme Court of India on this point and we do not know whether the
 Supreme Court will also veer away from that binding and will keep it up with the present day thinking.

7. MANU/MP/0022/1975 : AIR 1975 MP 99.

found negligent in not averting the possible collision. The Madhya Pradesh High Court
stated that between the deceased motor cyclist and the bus driver, the blame was in
the proportion of twothird and one-third, respectively. The court, thus, awarded the
damages to the plaintiff to the extent onethird of the amount he would have been
entitled to, if the deceased were not negligent.

In Maya Mukherjee v. Orissa Coop. Ins. Society Ltd. 1, a motor cyclist was killed in an
accident with the car. The Orissa High Court fixed the negligence of the motor cyclist at
60% and that of the car driver at 40%. The total damage to the motorcyclist was
assessed by the court at Rs. 75,000. Accordingly, the court awarded Rs. 30,000
damages to the motor cyclist's heirs i.e., 40% of Rs. 75,000.

The Gujarat High Court, in the case of Rehana v. Ahmedabad Municipal Transport
Service2 found the fault of a cyclist to the extent of 25% and that of the bus driver 7%.
Accordingly, the compensation was reduced.

The Calcutta High Court, in the case of Rural Transport Service v. Bezlum Bibi 3, where
the conductor of an overcrowded bus invited passengers on the roof of the bus and as
the driver turned the bus on the kuchha road, a passenger on the roof was hit by the
branch of a tree resulting in severe injuries and death, held that there was negligence
on the part of the conductor and the bus driver and also on the part of the passenger
because he took the risk of travelling on the roof of the bus. The damages were reduced
by the court to 50%.

In Oriental Fire & Genl. Ins. Co. v. Manjit Kaur 4, the Punjab and Haryana High Court
held 100% negligence on the part of a scooterist killed in the accident because he
rashly and negligently dashed a car being driven on the left hand side of the road. The
court did not award damages to the widow of the deceased because of his sole
negligence.

From the above cases, it has been seen that many High Courts have followed the law
enacted by the Law Reform (Contributory Negligence) Act, 1945, in spite of the fact that
they are bound by common law and not the law made by the British Parliament.5 It may
be because the Indian Parliament has not enacted any law in this area to uproot the
application of this grave and unjust common law in India and, therefore, the Indian
courts thought it better to veer away from the application of this unjust common law so
that hardship and injustice are not caused to the parties concerned. However, the
Indian Parliament in 1988

_______________________________
 1. AIR 1976 Ori 223.

2. MANU/GJ/0071/1976 : AIR 1976 Guj 37.

3. AIR 1983 Cal 165.

4. AIR 1981 P&H 60.

5. See Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh, MANU/SC/0086/1964 : AIR 1965 SC

1039, where C.J. Gajendragadkar of the Supreme Court did not follow the Crown Proceedings Act, 1947 of

England and suggested that the remedy is in the hands of the Legislature to change the existing bad law of

Governmental liability. There is no case of the Supreme Court of India in the area of contributory

negligence, and it is possible that the Supreme Court, whenever a case of contributory negligence comes

before it, may adopt the same approach as suggested by the C.J. Gajendragadkar in Kasturi Lal's case and

hark back to the old rule of common law i.e., the rule of last opportunity.

amended the Motor Vehicles Act1 and minimised to a little extent the rigour of common
law and allowed fixed amount of compensation of Rs. 50,000 in case of death, and Rs.
25,000 in case of permanent disablement, to accident victims. The amount of
compensation is not effected even if the accident victim is negligent. However, it is
submitted that although the various High Courts have veered away from the application
of common law in contributory negligence cases to mitigate the hardships, it is the duty
of the Parliament to enact a just law (may be on the lines of Law Reforms (Contributory
Negligence) Act, 1945 in this area at the earliest.2

3. Doctrine of alternative danger and contributory negligence

The doctrine of Alternative Danger means the choice of risks i.e., where the defendant
has placed the plaintiff in a situation of extreme peril, he cannot set up the Defence of
contributory negligence merely because the plaintiff, acting under a reasonable
apprehension of danger and in a reasonable and prudent way, has adopted a perilous
way of escape and is injured. In such a case the defendant cannot plead the defence of
contributory negligence. This was illustrated in an important case of Jones v. Boyce.3

The facts were that the plaintiff was the passenger in the defendants' coach. The driver
drove the coach so negligently that the plaintiff was alarmed. In order to save himself
from the danger created by the defendant, he jumped off the coach and broke his leg.
Soon after the coach was stopped, and if the plaintiff had remained in his seat he would
not have suffered much harm. The court held the defendant liable as the plaintiff had
acted reasonably. Lord Ellenborough observed that "to enable the plaintiff to sustain the
action it is not necessary that he should have been thrown-off the coach, it is sufficient
if he was placed by the misconduct of the defendant in such a situation as obliged him
to adopt the alternative of a dangerous leap or to remain at certain peril; if that position
was occasioned by the default of the defendant, the action may be supported."4
4. Contributory negligence of children

The doctrine of contributory negligence does not apply to children. It is no defence to

say that the child itself was negligent, for, negligence is a state of mind and children
have not sufficient mind to judge as quickly as an adult. The rule of contributory
negligence will, therefore, not inflexibly apply in cases where young children are
concerned. The defence of contributory negligence is more difficult to make out in the
case of a child than in the case of an adult. When the

______________________

1. The Motor Vehicle (Amendment) Act, 1988.

2. The other area is governmental liability for Torts committed by its servants. See Kasturi Lal Ralia Ram

Jain v. State of Uttar Pradesh, (1965) SC 1049.

3. (1816) 1 Stark 493.

4. Ibid., p. 495. See also other cases, Sayers v. Harlow Urban Distt. Council, (1958) 2 All ER 342; (plaintiff

may take risk for others also and not only himself), Brandon v. Osborne, G and Co., (1924) 1 KB 548; K.

Issur v. G.I.P. Rly., (1907) 9 Bom LR 671; Rose v. North E. Rly. Co., (1876) 2 Ex D 248; Robson v. N.E.

Rly., (1175) LR 10 QB 271; Morgan v. Aylen, (142) 1 All ER 489; Haynes v. Harwood & Sons, (1935) I KB

146; (taking a risk when nobody is in danger can not be justified); Cutler v. United Dairies (London) Ltd.,

(1933) ER 594; Gee v. Metropolitan Rly. Co., (1873) 8 QB 161.

plaintiff is a child, allowance must be made for his inexperience and infirmity of
judgment. The rule appears to be that an infant can recover, although its conduct
contributed to the injury, if the defendant has failed in his duty to the infant. This was
illustrated in the case of Motias Costa v. Roque A. Jacinto.1

The facts were that a child of about six years was crossing the road to reach the school
on the other side of the road. At that time he was knocked down by a motor cyclist
resulting in severe injuries. In an action against the defendant motor cyclist, the plea of
contributory negligence was raised by contending that the child suddenly came in front
of the vehicle. Rejecting the contention of contributory negligence, the court held that
the motor cyclist, as a reasonable person, could have anticipated that the school
children would cross the road at that point and that since he failed to drive his motor
cycle cautiously, he was liable. It was observed by the court that "there cannot be a
case of contributory negligence on the part of children because a child cannot be
expected to be as careful for his own safety as an adult and in such a case a plea of
contributory negligence can not be availed."

Similarly, the Delhi High Court in the case of D.T.C. v. Lalita 2, observed "Infants must, it
seems, be treated as a category apart…..In case of a child of tender age, conduct on the
part of such child contributing to an accident may not preclude it from recovering in
circumstance in which similar conduct would preclude a grown up person from doing
so.3 Thus, in Alka v. Union of India4, the defendants installed an electric pump in a room
adjacent to a road and kept the room open and unattended. Any body could have
access to that room. The plaintiff, a child of about six years and living in that locality,
trespassed into that room and without appreciating the danger put her hand in the
running motor. As a result she suffered physical injuries including loss of two fingers of
her right hand. The defendants were held liable for damage amounting to Rs. 1,50,000
for their gross negligence.

In the case of M.P.S.R.T. Corporation v. Abdul Rahman5, there was an accident between
a bus and motorcycle. All the three persons on the motorcycle (i.e., the driver, a grown-
up person and a child on the pillion), were killed. Both, the grown up person and the
child on the pillion, got full compensation as they were not deemed to be guilty of
contributory negligence.

Another worth mentioning case is that of Yachuk v. Oliver B. Co.6, decided by the Privy
Council in 1949. The facts were that the defendant's servant sold highly inflammable
liquid (gasoline) to two boys aged 7 and 8 years. As they falsely stated that they
needed the same for their mother's car. In fact, they used gasoline for their play with
the result that one of them was severely burnt. In an action on behalf of the child, the
plea of contributory negligence was raised. Rejecting

______________________________

1. AIR 1976 Goa 1.

2. AIR 1982 Del 558.

3. Ibid., p. 561.

4. AIR 1993 Del 267.

5. AIR 1997 MR 248.

6. 1949 AC 386.

the plea, the Privy Council held that there was no evidence to show that the child
appreciated the danger of gasoline. Accordingly, the defendant was held liable.

But where a child is capable of appreciating the danger he may be considered guilty of
contributory negligence. This was illustrated in the case of M. & SM Rly. Co. Ltd. v.
Jayammal1 where a girl of seven years was knocked down by an engine while she was
crossing the railway line after passing through a wicket gate, that the proximate cause
of the accident was the negligence of the girl in not looking out for a passing engine
when she was crossing the railway line and she was capable of appreciating the danger
and was old enough to have sense of discrimination: she was held to be guilty of
contributory negligence. The defendants, therefore, were held not liable.2

5. Doctrine of identification

The doctrine of identification means that a servant, agent or child is identified with his
master, principal or guardian/custodian, as the case may be. The defence of
contributory negligence can be pleaded not only when the plaintiff himself has been
negligent but also when there is negligence on the part of plaintiff's servant. Thus, as
between the plaintiff and the defendant, each is identified with any third person for
whom he is vicariously liable. The rule that the negligence of a servant during the
course of his employment is imputed to his master applies whether the master is the
plaintiff or the defendant. But, can the contributory negligence of an independent
contractor engaged by the plaintiff affect the plaintiff's action? In Thorogood v. Bryan 3,
plaintiff was identified with such an independent contractor and the negligence of the
independent contractor could be pleaded as a defence to an action brought by the
plaintiff. But this case was overruled by the House of Lords in Bernia Mills v.
Armstrong.4

The facts were that two ships collided with each other and two persons on board in one
of these ships were drowned. It was found that both the ships were at fault. In an
action by the representatives of the deceased persons, the defendant pleaded
contributory negligence. The House of Lords did not identify the deceased with their
carrier for its negligence for the purpose of the defence of contributory negligence, and
held the owners of the ship, other than that in which they were passengers, liable for
damages.

Similarly the negligence of the adult i.e., guardian or custodian of the child, is not
identified with the child and, therefore, the defence of contributory negligence can not
be pleaded by the defendant. This has been illustrated in the case of Oliver v. B. & X
Omnibus Company.5

The facts were that an infant, aged four years, was crossing a road under the care of his
grandfather. He was struck by an omnibus and received permanent

__________________________

1. (1924) 48 Mad 417.

2. See also Lynch v. Nurdin, (1841) 1 QB 29; Glasgow Corporation v. Taylor, (1922) 1 AC 44; 

Coates v. Rawtenstall, (1937) 2 All ER 602.

3. (1849) 8 CB 115.

4. (1881) 18 AC 1.
 5. (1933) 1 KB 35.

injuries to his left hand. The infant sued the omnibus company for damages sustained
by him through the negligent driving of the omnibus belonging to the company. It was
found by the Jury that the accident occurred through the negligence of the driver of the
omnibus and the contributory negligence of the grandfather. It was held by the court
that, nevertheless, the infant could recover damages.1

6. Burden of proving contributory negligence

The onus of proving contributory negligence rests at first instance with the defendants.
If he fails to do so, the plaintiff is not bound to prove its non-existence. Where the court
is not able to discover the extent to which both plaintiff and defendant is liable, the
defendant is entailed to benefit from it. For example _ `A' attempted to board a moving
tramcar by setting his foot on the footboard but failed to grip firmly the hand bar. The
footboard was loose and not firmly fixed. `A' fell down and sustained injuries. `A' had
attempted to board a moving train car and had not firmly gripped the handle bar due to
which he fell down. If the tramcar would not have been in motion the condition of
footboard would not have affected him. It was A's own negligent act in boarding a
moving car which was the cause of accident. Hence the tramcar company will not be
liable. In Anjanadevi v. Arumugham2 three boys were riding bicycle in the middle of the
road when traffic was very heavy. They were injured by a speedy motorcar. The court
held that the plaintiffs riding cycle in the middle of the road when traffic was very heavy
were negligent and contributed for the accident.

7. Composite negligence

When the negligence of two or more persons results in the same damage, then it is a
case of composite negligence, and the persons causing such damage are known as
`composite tortfeasors'. In England, they are classified in two categories: joint
tortfeasors and independent tortfeasors. Different rules govern the liability of these two
categories of tortfeasors. However, the Law Reform (Married Women & Tortfeasors) Act,
1935 and the Civil Liability (Contribution) Act, 1978, have virtually brought the position
of joint tortfeasors on par with the independent tortfeasors. The Courts in India have
not followed the statutory law of England wherever it was against the principles of
equity, justice and good conscience.3 The distinction between joint tortfeasors and
independent tortfeasors is not of much relevance in India. The term "composite
negligence" has been used in India to cover both kinds of cases of independent
tortfeasors and joint tortfeasors. Some problems have arisen in composite negligence
cases which have not been discussed in the earlier chapter on "Joint Tortfeasors". They
are being discussed in this chapter.4

___________________________
 1. See also Wait v. N.E. Rly, 1858 EBE 719.

2. MANU/TN/0379/1983 : AIR 1983 Mad 283.

3. See Chapter on "Joint Tortfeasors" supra for detailed discussion.

4. The Punjab & Haryana High Court in the case of State of Punjab v. Phool Kumari, AIR 1963 Punj 125 had

held that there could be apportionment of liability between composite tortfeasors, but that decision has not

been followed by several High Courts in subsequent cases, viz., Munjula Devi v. Manjurri, 1968 ACJ 1 (MP);
K. Gopalakrishan v. Sankara Narayanan, MANU/TN/0221/1968 : AIR 1968 Mad 436; S. Ravi Sharma

v. Som Nath, 1974 ACJ 505 Punj.

7.1. Nature of liability in composite negligence

The liability of the tortfeasors in composite negligence cases is joint and several.
No one is allowed to say that there should be apportionment of damages and his
liability should be on the basis of his fault. The judgment against the composite
tortfeasors is for a single sum without any apportionment, and that it is the
discretion of the plaintiff to enforce the whole of his claim against any one of the
defendants. However, the defendant who has paid more than his share may
claim contribution from the other defendants. A case worth mentioning at this
point is Hira Devi v. Bhaba Kant Das.1

The facts were that due to negligence of the driver of a State Transport bus and
the driver of a car, there was an accident resulting in the death of a person
travelling in another car and injury to some other persons in that car. The
tribunal made apportionment of damages as between the owners of the bus and
the car. The Guwahati High Court, however, held that the tribunal was in error in
apportioning the damages between the two tortfeasors. The court stated that
this is a case of joint tortfeasors and that the liability of the owner of the car has
not been established. The claimants were held entitled to recover the entire
amount of the claim from the owner of the bus i.e., State of Assam. The Court
also observed that this does not affect the right of the State to claim
contribution from the other tortfeasor, namely, the owner of the car.

The other case is of United India Fire & General Insurance Co. v. Sagar
Kanwar,2 where it was held by the Rajasthan High Court that there could be no
apportionment of damages in case of composite tortfeasors. It is no concern of
the tribunal to apportion the damages between them. The court observed that in
such a case the claimants are entitled to damages jointly and severally from
negligent respondents.

Similarly, in Satbir Singh v. Balwant Singh,3 there was a collision between a

motor cycle and a truck, resulting in the death of pillion rider and injuries to the
motor cyclist. The court found negligence of the motor cyclist to the extent of
 two-third and that of truck driver one-third. There was no negligence of the
pillion rider. Thus, there was composite negligence of the truck driver and the
motor cyclist against the pillion rider. The court held that the widow of the pillion
rider was entitled to claim the whole amount from the truck owner and his
insurance company. Thereafter, the truck owner and the insurance company
could claim the amount from the motor cyclist to the extent of his liability.

Another worth mentioning case is of Narinder Pal Singh v. Punjab State4, where
the appellant was travelling in the Punjab Roadways bus. He was seriously
injured and his right arm was amputated as a result of head on collision between
that bus and the truck. Both the drivers were found equally negligent.

___________________________

1. MANU/GH/0069/1976 : AIR 1977 Gau 31.

2. AIR 1976 Raj 173.

3. 1987 ACJ 1096.

4. AIR 1989 P&H 82; See also Karnataka State Road Transport Corporation v.
Krishnan, MANU/KA/0120/1981 : AIR 1981 Kant 11; Prayagdatta v. Mahender Singh, 1996 ACJ 59

(MP); Parsani Devi v. State of Haryana, 1973 ACJ 531 P&H; Amthiben v. Superintendenting Geophysicist,

ONGC, 1996 ACJ 72 (Guj).

The claimant had recovered the entire amount from the insurance company of
the truck owner. The insurance company then recovered half of the amount and
interest thereon from the State of Punjab as the owner of Punjab Roadways bus.

8. Distinction between contributory negligence and composite negligence

As has already been seen above, where both the parties (plaintiff and defendant) are
negligent, it is a case of contributory negligence. However, where a person is injured
without any negligence on his part but as a result of the combined effect of the
negligence of two other persons, it is a case of what has been styled by Pollock as
`injury by composite negligence.1

The second point of difference is that contributory negligence is considered as defence

whereas composite negligence is not. In the case of contributory negligence, the court
has to see the extent to which the parties are at fault and the court decides the
apportionment of damages between the plaintiff and the defendant according to the
degree of their faults. In the case of composite negligence, the liability of the two or
more defendants is joint and several and the court does not decide the apportionment
of damages between/among the defendants. Consequently, there is a single decree for
the whole amount against all the defendants, without any apportionment of damages.
This has been beautifully explained by the Rajasthan High Court in the Case of United
India Fire & General Insurance Co. v. Sagar Kanwar2 in the following words: "It seems
to us that that where the negligence of the claimant injured or the deceased also
contributes to the happening of the accident, the amount of compensation that the
respondent will be required to pay shall be in proportion to the volume of his fault or
negligence but where a person is injured or dies in an accident which occurs not on
account of his negligence, but because the drivers of the colliding vehicles were
negligent, the claimants are entitled to damages jointly and severally from the negligent
respondents. It is no concern of the tribunal to apportion damages between them."3

9. Distinction between Negligence and Contributory Negligence

Negligence arises where the defendant is said to be in breach of legal duty to take
reasonable care, which results in damage to the plaintiff, where as contributory
negligence arises when plaintiff is said to be carelessness in looking after his own
safety. Thus, negligence depends on a breach of duty to others, whereas contributory
negligence does not, it is a man's carelessness in looking after his own safety [Froom v.
Butcher, (1975) 3 All ER 520] In an action for negligence the burden of proof is on the
plaintiff; he must establish a breach of legal duty to take reasonable care and its causal
connection with the damage complained of, whereas contributory negligence is a
defence in which the burden of proving contributory negligence is on the defendant; he
has to prove that the plaintiff failed to take reasonable care of his own safety and that
was a contributory factor to the damage suffered by the plaintiff.

________________________

1. See, Manjula Devi Bitta v. Manjusri, 1968 ACJ 1 MP 20.

2. AIR 1976 Raj 173.

3. Ibid., 179 (180).

© Universal law Publishing Co.

   

CHAPTER 17

LIABILITY OF THE OCCUPIERS FOR DANGEROUS PREMISES

SYNOPSIS

1. Introduction
2. Premises

3. Occupier

4. Visitor

5. Duty of the occupier to visitors

5.1. Adult or child visitor

5.2. Specialist visitor

6. Structure adjoining the highway

7. Occupier's liability towards trespassers

1. Introduction

Although this chapter substantially belongs to the subject of negligence, it deserves

separate treatment on account of industrial relations and modern social conditions of
life. The persons living in city, town, villages, harbour areas and industrial areas will
have to visit to a factory, ship, shop, house or vehicle or appliances connected with
them like a lift or stairs and it is the duty of the occupier of such premises to keep them
safe so that the visitors or entrants are not injured. Before 1957, the common law of
England on occupiers' liability was extremely complicated. The dissatisfaction from this
complicated law led to the reform in England by the Occupier's Liability Act, 1957, which
was enacted as a result of the Report of a Law Reform Committee in 1952. In India we
have no statute on occupier's liability for dangerous premises. We can, therefore, follow
the English law of torts as modified by the statutory law of England if the statute law is
more in consonance with equity, justice and good conscience as has already been held
by the Indian courts in several cases.1 The liability of an occupier of premises towards
all the visitors/entrants, except trespassers, is now governed under the English law by
the Occupier's Liability Act, 1957.2Since we

____________________________

1. See, Nawal Kishore v. Rameshwar, MANU/UP/0172/1955 : AIR 1955 All 594; Kushal Rao v.

B.R.G. Rao, AIR 1942 Nag 52; D. Dhar v. C. Shekhar, MANU/UP/0050/1951 : AIR 1951 All 774; K.S.

Gandhi v. NA Guzdar, AIR 1970 SC 1468; M.C. Mehta v. Union of India, JT Vol. 1, No. 1, January 1, 1987.

2. The Liability towards Trespassers is now governed by Occupiers Liability Act, 1984.

have to discuss the liability of an occupier of premises towards a visitor, it would be

better to explain the terms `Premises', `Occupier' and `Visitors'.

2. Premises
The expression `premises' means not only land but also shop, factory, vehicle, railway
carriages, scaffolding, aeroplane, ship or appliance connected with them like a lift or
stairs etc.

3. Occupier

The liability under the Act is of an occupier. The Act uses the word `occupiers' in the
same sense as it was used in common law cases on occupier's liability. The Law Lord, in
an important case,1 laid down the meaning of the term, `occupier':

"It was simply a convenient word to denote a person who had a sufficient degree
of control over premises to put him under a duty of care towards those who
came lawfully on to the premises. In order to be an `occupier' it is not necessary
for a person to have entire control over the premises. He need not have
exclusive occupation. Suffice is that he has some degree of control. He may
share the control with others. Two or more may be occupiers. And whenever this
happens, each is under a duty to use care towards persons coming lawfully on to
the premises, dependent on his degree of control. If each fails in his duty, each
is liable to a visitor who is injured in consequence of his failure but each may
have a claim to contribution from the other"2.

When a landlord lets his entire premises to a tenant, it is the tenant who has control
over them. Where an owner lets all the floors or flats in a building to tenants but does
not let the common stairs or the roof or some other parts, the owner is regarded as
having control on all those parts not let out by him. Thus, the owner has been held
liable for a defective stair case3, for the private balcony4 for the gutters in the roof5 and
for the defective swimming pool.6 When a landlord merely creates a licence in favour of
a person to occupy them, he is deemed to have retained the right to repairs and is
regarded as being sufficiently in control of the premises to impose on him duty towards
visitors and is liable to a visitor who falls on a defective step. 7 Where an owner employs
an independent contractor to do work in the premises, the owner is usually regarded as
sufficiently in control of the premises. In addition to the owner, the court may also
regard the independent contractor as being sufficiently in control of the premises he
works and having a duty of care towards persons coming lawfully there.8

________________________

1. Wheat v. E. Lason & Co., (1966) 1 All ER 582 (HL).

2. Lord Denning, Ibid.

3. Miller v. Hancock, (1893) 2 QB 177; Kallulal v. Herachand, MANU/MP/0023/1958 : AIR 1958 MP

48.
 4. Suicliffe v. Clients Inv. Co. Ltd., (1924) 2 KB 746.

5. H.A. & Co. v. Hartopp, (1905) 1 KB 47.

6. K. Mittlebachert v. East India Hotels Ltd., AIR 1997 Del 201.

7. Hawkins v. C & P.U.D.C., (1954) 1 QB 319.

8. Harwell case, 1947 KB 901.

4. Visitor

Before the Act of 1957, the liability of an occupier varied according to the class of
persons coming on his premises. In common law, such persons were placed in four
different classes i.e., (a) Person entering under a contract, (b) Invitee i.e., a person
who (without any contract) enters for the purpose of occupier's business or for a
business in which both are interested viz., a customer in a shop, (c) Licensee, i.e., a
person who enters with the occupier's permission, express or implied for a business in
which he alone had interest, for example, a guest at a dinner and (d) a trespasser. The
duty of care owed by an occupier to these persons varied in a descending order, the
highest being owed to a person entering under a contract and the lowest to a
trespasser.

The Occupier's Liability Act, 1957 abolished the distinction between an invitee and
licensee and both are now termed as visitor under the Act. The occupier now owes a
single common duty of care. The same common duty of care is owed by an occupier to
contractual entrants. The trespassers are not covered under the Act.

The question is: who is a visitor? Every person who enters the premises with the
permission or invitation of the occupier is visitor. He may be an invitee, licensee or
contractual entrant or any other, except a trespasser. There is no difficulty if the
occupier has given express permission or invitation. But the real difficulty arises in
those cases where a person enters the premises with implied permission. This is to be
decided objectively by assessing the inference arising from all relevant circumstances.
In deciding such a question, some general principles have to be kept in view. The
burden of proof is on the entrant to show that he had implied permission from the
occupier.1 Any person who enters the premises to communicate with the occupier is
presumed to have implied permission2 unless there is notice forbidding him to
enter.3 Tolerance of repeated trespass does not confer any licence, 2 but this factor may
be taken into account in support of an implied licence.4 It should be noted that a visitor
ceases to be a visitor if he goes to a place which is not covered by the permission 5 or
where he is not expected to go6, or if he does something contrary to warning or
instructions.7 In all such cases, the visitor will be treated as a trespasser.8

It is important to note that the term `visitor' will also include any person who enters
premises for any purpose in the exercise of a right conferred by law because such
persons are to be treated as permitted by the occupier to be there for that purpose,
whether he infact has his permission or not. For example, a

_________________________

1. Edwards v. Railway Executive, 1952 AC 737.

2. Brunner v. Williams, 1975 Cr LR 250.

3. Robson v. Hallistt, (1967) 2 QB 393.

4. Lowery v. Walker, 1911 AC 10.

5. Lewis v. Ronald, (1909) 101 LT 534.

6. M.D. & H.Bd. v. Procuter, 1923 AE 253.

7. Anderson v. Coutts, (1894) 58 JP 369.

8. Hillen v. I.C.I. Ltd., 1936 AC 65 (HL).

court official and a police constable entering the premises in execution of a Court order
or warrant will be treated as visitors.

5. Duty of the occupier to visitors

The common duty of care owed by an occupier to all his visitors is a duty to take such
care as in all the circumstances of the case is reasonable to see that the visitor will be
reasonably safe in using the premise for the purpose for which he is invited or permitted
by the occupier to be there.1 Thus, in Tichener v. British Rlys. Board 2, the Law Lords
held that "the duty is not to ensure the visitor's safety, but only to take reasonable
care. What is reasonable care will depend upon all the circumstances of the case." This
is specifically provided by section 2(3) of the Act that the circumstances relevant for the
purpose will include "the degree of care, and of want of care which would ordinarily be
looked for in such a visitor." For example, A an occupier must be prepared for children
to be more careful than adults; and B an occupier may expect a person, in the exercise
of his calling, will appreciate and guard against any special risk ordinarily incidental to
it, so far the occupier leaves him free to do so.

A few cases on this point may be mentioned.

In the case of City of Ferguson v. Marrow,3 the plaintiff, aged 21 years, was an

experienced but not an expert swimmer. When he took a drive in the swimming pool,
his head was hit against the bottom of the swimming pool. It was found as a matter of
fact that there was danger in the pool due to insufficiency of depth of water in the pool.
The court held the pool authorities liable.4

Similarly, in Klaus Mittlebachert v. East India Hotels Ltd.,5 the plaintiff, a German, took
a dive in a swimming pool of a 5-Star hotel in New Delhi and hit his head against the
bottom of the pool. He suffered severe injuries, resulting in paralysis and consequent
death after 13 years of the accident. It was found that there was insufficient water in
the swimming pool. The 5-Star hotel was held liable. Holding the 5-Star hotel liable for
the defective design of the swimming pool and hence a trap, the court observed that in
a 5-Star hotel, the duty of care was higher. The court observed as follows:

"A 5-Star hotel charging a high or fancy price from its guests owes a high degree
of care to its guests as regards quality and safety of its structure and services it
offers and makes available. Any patent defect in its structure or service, which is
hazardous to guest, would attract strict liability to compensate for consequences
flowing from its breach of duty to take care. The 5-Star price tag hanging on the
service pack attracts and costs an obligation to pay exemplary damages if an
occasion may arise for the purpose. A 5-Star hotel cannot be heard to say that
its structure and services

__________________________

1. Section 2(2) of the Occupier' Liability Act, 1957.

2. (1983) 3 All ER 770 (HL).

3. 210 Federal Report (II Series) 520.

4. See also Parrel I. Cumming v. Borough of Nazareth, 233 Attantic Reporter (2nd Series) 874.

5. AIR 1997 Del 201.

satisfied the standard of safety of the time when it was built or introduced. It has to
update itself with the latest and advanced standard of safety."

5.1. Adult or child visitor

In Hawkins v. Coulsdon & Purley U.D.C.1, Donning L.J. observed, "that the

difference between an adult visitor and a child visitor is that the child will meddle
where the adult will not and so what is safe for an adult may not be safe for a
child." Thus, what is an obvious danger for an adult visitor may be a trap for the
child visitor. In such a case the occupier must guard the child visitors even
against such danger. In Glasgow Corporation v. Taylor2 the facts were that the
defendants maintained a public park which was much frequented by the
children. There were poisonous shurbs in part of the park. A child of seven years
entered the park, ate some attractive looking berries of the poisonous shrubs
and died. The Corporation had known of the existence of the poisonous shurbs
 and had taken no step to warn the children or to prevent them in reaching there.
In an action by the father of the deceased child, the Corporation was held liable
for want of due care to the children.3

5.2. Specialist visitor

Where, however, the occupier can expect that a person in the exercise of his
calling will appreciate and guard against risks incidental to his calling, he need
not be warned about them.4 In G.C. Contractors v. Christman, which is still
considered as good law under the new Act5, the facts were that a window
cleaner was engaged to clean the windows of a Club. One of the windows was
defective and when it was being cleaned, it fell down quickly and trapped the
hand of the window-cleaner. It was held by the court that he had no cause of
action against the Club for the risk of a defective window which is incidental to
the calling of a window-cleaner. The court also pointed out that had it been a
case of a guest, the result would have been different.6

In another case of Roles v. Nathan,7 two chimney-sweeps were killed by

carbonmonoxide while trying to seal a sweephole in the chimney of a cokefired
boiler while the fire was still alight. Holding the occupier not liable, Lord Denning
observed: "These chimney-sweeps ought to have known that there might be
dangerous fumes about and ought to have taken steps to guard against them.
They ought to have known that they should not attempt to seal up a sweephole
while the fire was still alight. Where a householder calls in a specialist to deal
with a defective installation on his premises, he can reasonably expect the
specialist to appreciate and guard against the dangers arising from the defect.

________________________

1. (1954) 1 QB 319.

2. (1922) 1 AC 44.

3. See Also, Phipps v. Rochester Corp., (1955) 1 QB 450; Tichener v. British Rly. Board, (1983) 3 All ER

770 (HL).

4. Section 2(3) (b) of Occupier's Liability Act, 1957.

5. Roles v. Nathan, (1963) 2 All ER 908 (CA).

6. (1952) 1 KB 141.

7. (1963) 2 All ER 908 (CA).

The Householder is not bound to watch over him to see that he comes to no
 harm.1

It is important to note that a warning to the visitor by the occupier is not to be

treated without more as absolving the occupier from liability unless in all the
circumstances it was enough to enable the visitor to be reasonably safe. 2 But
notice or knowledge of the danger is only a defence when the plaintiff is free to
act upon that notice or knowledge so as to avoid the danger.3

Where, however, the damage is caused to a visitor by a danger due to the faulty
execution of any work of construction, maintenance or repair by an independent
contractor employed by the occupier, the occupier is not to be treated without
more as answerable for the damage if in all the circumstances he had acted
reasonably in entrusting the work to an independent contractor and had taken
such steps, if any, as he reasonably ought to, in order to satisfy himself that the
contractor was competent and that the work had been properly done.4 The
Occupier's Liability Act, 1957 also preserves the defence of volenti non fit
injuria.5 Similarly, principles of contributory negligence will also be applicable in
such kind of cases. Damage to property is also covered under the Act.

6. Structure adjoining the highway

The buildings adjoining the highway must be maintained in such a way so as not to be
dangerous to the users of the highway. If the building is in a dangerous condition and
any damage is caused to the users of the highway, the owner of the building will be
liable. In Kallulal v. Hemchand6, the appellant was the owner of a house adjoining the
highway. For several years, stalls on thelas used to be kept on the highway by the side
of the house. While it was raining, a wall of the said house collapsed causing the death
of two children of the respondent. The Madhya Pradesh High Court applied the maxim
res ipsa loquitur and held that the collapse of the wall was itself an evidence that the
said wall was in a bad condition. The court further held that the rainfall of 2 to 3 inches
during the rainy season did not constitute an act of God. The rainfall ought to have been
anticipated and provided against. The owner of the house was held liable.

In Municipal Corporation of Delhi v. Subhagwanti7, the facts were that a Clock Tower
situated in Chandni Chowk, Delhi and belonging to Municipal Corporation, Delhi,
collapsed resulting in the death of the number of persons. The tower was 80 years old,
although its normal life was 40 to 50 years. It was found that the mortar used had lost
the cementing properties. The Supreme Court raised the presumption of negligence on
the part of M.C.D. and held it

________________________

1. (1963) 2 All ER 908 (CA).

 2. Sec. 2(4)(a) Occupier Liability Act, 1957; See also Greene v. Chelsee Borough Council, (1954) 2 QB 172.

3. Ibid. See also G.P. Singh Law of Torts, 23rd Edn., p. 456.

4. Section 2(4)(b); See also Ferguson v. Welsh, (1987) 2 All ER 777 (HL).

5. Section 2(5).

6. MANU/MP/0023/1958 : AIR 1958 MP 48.

7. MANU/SC/0010/1966 : AIR 1966 SC 1750.

liable "because of the potential danger of the tower maintained by it having not been
subjected to a careful and systematic inspection, which it was the duty of the appellant
to carry out." The Supreme Court observed:

"There is a special obligation on the owner of adjoining premises for the safety
of the structure which he keeps besides the highway. If these structures fall into
disrepair so as to be a potential danger to the passerby or to be a nuisance, the
owner is liable to anyone using the highway who is injured by reason of the
disrepair. In such a case, it is no defence for the owner to prove that he neither
knew nor ought to have known of the danger. In other words, the owner is
legally responsible, irrespective of whether the damage is caused by a patent or
a latent defect."1

But where the owner does not know about the dangerous condition of the
structure and the same could not be known in spite of reasonable inspection, he
will not be liable if the structure falls without any fault of the owner. It was so
held in the case of Nagamani v. Corporation of Madras 2, where one R.R. Naidu
was returning from office to his house. On the way, corporation's ventilator iron
post on the pavement fell on Naidu resulting in head injuries and consequently,
he died the same night. The iron post which fell on him was made of steel and
was erected only thirty years back whereas its normal life was fifty years. It was
periodically inspected and it was found in a sound condition only one month
back. Several such ventilator iron posts had been fixed in the city and this was
the first accident of its kind. The Madras High Court held that "negligence and
want of due care and attention by the Corporation have not been shown to be
reasonable explanations for the accident. On the other hand, the Corporation
has shown that all legitimate precautions had been taken by them and that there
was no want of adequate care and attention on their part—which can be
normally expected in the circumstances of this case. The defendant would not be
liable for the falling down of the column as this was not due to any negligence
on its part and the accident could not have been averted by the exercise of
ordinary case, skill and caution on the part of the defendant."3
The case of Noble v. Harrison4 is another illustration of latent defect and there was no
negligence on the part of the occupier of the premises. In that case a branch of a huge
tree, grown on the defendants' land, overhanging on the highway, suddenly broke down
due to some latent defect and fell on the plaintiff's vehicle passing on the highway. The
court held the defendant not liable as there was no negligence on his part.

7. Occupier's liability towards trespassers

The English Act of 1957 does not cover trespassers. However the duty of an occupier
towards a trespasser comes lowest in the scale in common law. The first

__________________________

1. AIR 1966 1750 (1753), per Ramaswami J.; See also Wringe v. Cohen, (1940) 1 KB 229.

2. AIR 1956 Mad 59.

3. Ibid., p. 67.

4. (1926) 2 KB 332.

question therefore is: Who is a trespasser? This has been beautifully explained in the
case of A & Sons Collieries Ltd. v. Dumbreck.1 A trespasser is one who wrongfully enters
on land in the possession of another and has neither right nor permission to be on the
land. He is one "who goes on the land without invitation of any sort and whose presence
is either unknown to the proprietor, or if known, is practically objected to.

Similarly, in the case of V. Krishna Naidu v. Union of India2, where a taxi driver had
entered a railway level crossing (provided with gates, gongs and red lights on both sides
to warn the public) at the time when the gates were about to be closed and there was
sufficient warning from ringing of gongs and the red lights were on, it was held by the
Madras High Court that the taxi driver was a trespasser and not entitled to recover any
damage.

In another case of Mokshada S. Ghose v. Union of India 3, the husband of the plaintiff,
an old man of sixty years, while trying to cross the railway tracks was knocked down by
a passing engine and died instantaneously. He was a season ticket holder and was
going to get it renewed. He was held to be a trespasser on the railway lines, as he could
have come to the railway station through the nearby level crossing instead of taking the
short cut across the railway tracks. The court observed that a man trespasses at his
own risk. Though a trespasser is not an outlaw, he trespasses at his own risk and the
occupier is not liable unless he acts with the intention of causing harm to the trespasser
or in reckless disregard of the person of the trespasser.

It is important to note that a trespasser becomes a licensee visitor, if the occupier

acquiesces to the frequent acts of trespass and does not take effective steps to stop the
trespass. A case worth mentioning on this point is that of Lowery v. Walker 4, where the
defendant was the occupier of a field across which the members of the public had used
short cut for thirty-five years. The defendant had, on certain occasions, objected to this
practice but had taken no effective steps to stop the trespass by the members of the
public. The defendant kept a savage horse on the field without any notice and when the
plaintiff crossed the field, he was seriously injured by the savage horse. The court held
that the plaintiff was deemed to be there with the tacit permission of the defendant and,
therefore, he was a licensee. Thus, the defendant was liable for the injuries suffered by
the plaintiff.

Duty of occupier towards trespassers.—

The duty of an occupier towards a trespasser has not been dealt with by the Occupier's
Liability Act, 1957. It is therefore necessary to trace the principles for determining the
duty of an occupier towards the trespassers in common law. In common law the duty of
an occupier towards a trespasser comes lowest in the scale. However the duty and
liability of an occupier towards trespassers have also undergone considerable change by
liberal judicial approach in the recent years and later by the Occupier's Liability Act,
1984.

______________________________

1. 1929 AC 358 (HL).

2. MANU/TN/0585/1975 : AIR 1976 Mad 95.

3. MANU/WB/0109/1971 : AIR 1971 Cal 480.

4. 1911 AC 10.

In 1929 the House of Lords in the famous case of Robert Addie & Sons (Collieries) Ltd.
v. Dumbreck1, laid down the duty of care of an occupier towards trespasser in these
words:

"Towards the trespasser the occupier has no duty to take reasonable care for his
protection or even to protect him from any concealed danger. The trespasser
comes on to the premises at his own risk. An occupier is in such a case liable
only where the injury is due to some willful act involving something more than
the absence of reasonable care. There must be some act done with the
deliberate intention of doing harm to the trespasser or at least some act done
with reckless disregard of the presence of the trespasser."

Thus, in this case it was held that an occupier did not owe any duty of care to a
trespasser except that not to inflict injury intentionally or recklessly on a trespasser
known to be present. This law was confirmed by the Privy Council in Commissioner of
Rlys. v. Quinlon2. But even under this rule an occupier cannot harm a trespasser by
placing a spring gun3, or setting a naked live wire 4 to prevent persons from trespassing
on to his land without giving any warning of the danger to trespassers.

The principle laid down in Dumbreck's case for determining the duty of an occupier was
very restrictive. This rule which was laid down forty years back was found inadequate
due to the modern conditions of the developed society. Consequently, it gave way to a
more liberal approach made in British Railways Board v. Herrington.5 In this case the
facts were that the defendant, the British Railway Board, owned two miles of electrified
line which was separated by a fence from a meadow in which children played. When the
fence became dilapidated, the station master was informed that children had been seen
on the line. The Station Master merely informed the police and did not take any step to
repair it. Two months later, the plaintiff, a boy aged six, went over the broken fence
and got severely burnt on the electrified rail. The plaintiff sued by his next friend and
the trial judge held the defendant liable on the ground that it was

_________________________

1. 1929 AC 358 (HL).

2. 1964 AC 1054 (PC).

3. Bird v. Halbrook, (1828) 4 Bing 628. In this case the defendant, having had flowers stolen from his

garden, had placed a spring gun in the garden for future protection. The plaintiff, a boy in search of his

strayed away fowl and having no knowledge of the existence of the gun, got over the garden wall, and

coming into contact with the gun was injured. The defendant was held liable because there was an intention

to injure the trespasser. Such a case is `just to' arrange to shoot him without personally firing the shot. It

may also be noted that the defendant exceeded the right of private defence to his property by putting

spring gun. The occupier i.e., defendant could have placed broken glass pieces or spikes on the top of a

wall as a protective measure to keep off a trespasser.

4. Cherubin v. State of Bihar, MANU/SC/0080/1963 : AIR 1964 SC 205. In this case the appellant

had fixed naked electric wire across the passage to his latrine to prevent trespassers from using the same.

No warning regarding the live wire was given. The naked wire caused the death of a person who visited the

latrine. Holding the defendant (occupier) liable, the Supreme Court stated: "It is, no doubt, true that the

trespassers enters the property at his own risk and the occupiers owes no duty to take reasonable care for

his protection, but at the same time, the occupier is not entitled to do wilful acts such as set a trap or set a

naked live wire with the deliberate intention of causing harm to the trespassers or in reckless regard of the

presence of the trespassers."

5. (1972) 1 All ER 749: 1972 AC 877.

reasonably foreseeable that a child would climb through the hole in the fence. On
appeal, the judges of the Court of Appeal confirmed the decision of the trial court but
rested their decision on the ground of "reckless disregard" than that of foreseeability.
On further appeal, the House of Lords confirmed the decision of the Court of Appeal but
on different grounds of common sense and common humanity and not on the ground of
"reckless disregard". Holding that the rule in Dumbreck case, decided forty years back,
has been rendered obsolete by changes in physical and social conditions, the Law Lords
ruled that duty to a trespasser would arise when the likelihood of the trespasser being
exposed to the danger was such that by the standard of common sense and common
humanity, the occupier could be said to be culpable in failing to take reasonable steps to
avoid the danger. It was pointed out that an occupier owed no duty to the unknown,
merely possible, trespasser; but if the presence of the trespasser was known to or
reasonably to be anticipated by the occupier, then the occupier did owe to the
trespasser a duty to treat him with ordinary humanity which was lower and less onerous
duty than a general duty of care or the common duty of care owed to lawful visitors.1

The above rule in Herrington case was applied by the Court of Appeal in Pannett v.
McGuiness P. Co. Ltd.,2 in which a child trespasser was held entitled to recover
damages, departing from the rule in Durnbreck's case. Similar view was also taken by
the Privy Council in Southern Portland Cement Ltd. v. Cooper.3 Thus Durnbreek's case is
no more a valid law.

Finding it just and equitable, Herrington's case was referred to Law Commission which
recommended legislative action to define an occupier's duty towards trespassers. This
led to the enactment of the Occupiers Liability Act, 1984 which provides that an
occupier owes a duty to trespassers if the following conditions are satisfied. (i) he is
aware of the danger or has reasonable grounds to believe that it exists; (ii) he knows or
has reasonable grounds to believe that the other is in vicinity of the danger concerned
or that he may come into the vicinity of the danger, (iii) the risk is one against which, in
all the circumstances of the case, he may reasonably be expected to offer the other
some protection. If these three conditions are satisfied , the occupier's duty is to take
reasonable care to see that the entrant does not suffer injury on the premises by
reasons of the danger concerned and it may, in an appropriate case, be discharged by
taking such steps as are reasonable to give warning of the danger concerned or to
discourage persons from incurring the risk. The defence of volenti non fit injuria and
contributory negligence are preserved in such kind of cases.

It is to be seen whether the courts in India will follow the principles of Herrington's case
or whether they will follow the principles of the Occupiers Liability Act, 1984. It is
submitted that the criterion of duty towards trespassers laid down in Herrington's case
is just and equitable and there will be no difficulty in its application. However, even if
the principles of the English Act are followed, the result would not be different in most
of the cases.

_____________________________
 1. See, Ratanlal & Dhirajlal Law of Torts, 23rd Edn., 1997, p. 458.

2. (1972) 3 All ER 137 CA.

3. (1974) 1 All ER 87 (PC).

© Universal law Publishing Co.

   

CHAPTER 18

VICARIOUS LIABILITY

SYNOPSIS

1. Introduction

2. Liability by ratification

3. Liability arising out of special relationship

3.1. Principal and agent

3.2. Partners

3.3. Master and servant

3.3.1. Who is a servant?

3.3.2. Lending a servant

3.3.3. The scope (or course) of employment

3.3.4. Carelessness of servant

3.3.5. Mistake of servant

3.3.6. Fraud of servant

3.3.7. Theft by servant

3.3.8. Out side the course of employment

3.3.9. Lift to an unauthorised person

3.3.10. Delegation of duty by Servant

 3.3.11. Express prohibition by master

3.3.12. Servant and independent contractor

4. Doctrine of common employment

1. Introduction

Basically the idea was that a person should be held responsible for his own fault. This
was also asserted by Plato in his laws that a person should be held responsible for his
own sins. But in England, after the Norman Conquest, it was firmly established in the
Thirteenth Century that master would be liable for his servant's or slave's torts only
when there is a express command of the master to the servant's wrong.1 In
Seventeenth Century this limited form of liability was found inadequate due to rise in
commercial transactions. Consequently, a new development took place in 1697 when
Sir John Holt in the case of Tuberville v. Stamp 2, held that "the master would be liable
for his servant's tort if he had given

________________________

1. This is not vicarious liability because master participated indirectly in the tort.

2. (1967) 1 Ld Raym 267.

his implied command." This `implied command' can only be inferred from the general
scope of the servant's employment. Accordingly, a master would be liable for his
servant's tort if he commits it during the course of his employment. Justice Holt was,
therefore, the founder of the modern law of vicarious liability.

Thus, there are circumstances where liability attaches to a person for the wrongs
committed by others. The most common instance is the liability of the master for
wrongs committed by his servant. In these cases liability is joint as well as several. It is,
therefore, quite correct, as Salmond says, that "in general a person is responsible only
for his own acts, but their are exceptional cases in which the law imposes on him
vicarious responsibility for the acts of others, however blameless himself." The liability
for the tort committed by another arises in three ways:—

(1) Liability by ratification.

(2) Liability arising out of special relationships.

(3) Liability by abetment.

2. Liability by ratification

The liability by ratification arises where the defendant has ratified the particular
wrongful act or omission. Thus, an act done for X by Z not for himself but for X, though
without the authority of X, becomes the act of the principal X, if subsequently ratified by
X. If a person commits a tort while acting on behalf of another but without his authority
and that other subsequently ratifies that act, he thereby becomes responsible for it.
Such an act becomes the act of the principal in the same way as if it were done with
previous authority. This is based on the maxim `omnis ratihabitio retrorahituret
mandato priori acquiparatur' which means every ratification of an act relates back and
there upon becomes equivalent to a previous request. This has been very beautifully
illustrated by Tindal CJ, in the case of Wilson v. Tumman1 that "an act done, for
another, by a person not assuming to act for himself, but for some other person;
though without any precedent authority whatever, becomes the act of the principal if
subsequently ratified by him, is the known and well established rule of law." Thus, we
find that there are three conditions which must be satisfied before one person can be
held liable for another's tort on the ground of ratification. They are (a) only such acts
bind a principal by subsequent ratification as were done at the time on his behalf. This
necessarily implies that what is done by a person on his account can not be effectually
adopted or ratified by another; (b) the person ratifying the act must have full
knowledge of its tortious character, and (c) an act which is illegal and void cannot be
ratified.

3. Liability arising out of special relationship

What kind of relationship makes a person liable for the tort committed by another
(which is often epitomised in the maxim "qui facit per alium facit per se") is to be
examined here. It embraces the master-servant relationship, and also that

_______________________

1. (1845) 6 M&G 236. See also Marsh v. Joseph, (1897) 1 Ch 213 and Eastern Construction Co. Ltd. v.

National Trust Co., 1918 AC 917.

of principal and agent, and it has a place in partnership. Yet it may sometimes too
transcend these close relationships and render a person responsible for the misdeeds of
an independent contractor e.g., builder. The subject may, therefore, be divided thus: (i)
principal and agent; (ii) partners; (iii) master and servant; and (iv) independent
contractor.

3.1 Principal and agent

The vicarious liability of principal for the tort of his agent is based on the maxim
qui facit per alium facit per se, which means, "he who does an act through
another is deemed in law to do it himself." Thus a principal is vicariously liable
for the tort of his agent committed within the course of his authority. Thus, a
contract concluded by an agent on behalf of his principle with third party/parties
within the course of his authority would bind the principal to the third party. The
 question is, who, for this purpose is an Agent? The relevant concept of an agent
in this regard is a person who, otherwise than as servant, and otherwise than as
an independent contractor, whether by way of contract, or only by way of
request, conducts some business or performs some act or series of acts on
behalf of another (principal). Thus, where the owner of a motor vehicle requests
or authorises another person to drive the vehicle for purposes of his (owner's)
own, and where in the course of driving the other person carelessly injures some
one, the owner will be held vicariously liable. This does not mean that the owner
is responsible for the negligence of some one who drives his car solely because
he permits him to do so. The agency will only arise if the owner has
authorised1 the act, or requested it, or because the actor is carrying out a
task2 or duty delegated3 or because he is in control4 of the actor's conduct5,
otherwise he will not be held liable.6 Thus, the owner of a vehicle will be liable
for the negligence of a person who uses the vehicle for carrying out a task which
the owner has delegated to him. This was illustrated by the case of Ormord v.
Crosville Motor Services Ltd.7

The facts were that the defendant, who was about to compete in the car rally,
asked his friend to drive his (the defendant's own) car from Birkenhead to Monte
Carlo so as to meet the defendant there at the end of the rally. The friend was to
bring in the car a suitcase for the defendant, and after the rally they were both
to take the car and go on holiday. In view of this agreement the friend departed
from Birkenhead but, before reaching Monte Carlo, negligently collided with an
omnibus which was damaged. The court held the defendant liable, for, the friend
was using the car for the defendant's purpose. Lord Denning said:

"the law puts an special responsibility on the owner of a vehicle who

allows it to go on road in charge of some one else, no matter whether it
is

________________________

1. On the general principle of authorisation.

2. Scarsbrook v. Mason, (1961) 2 All ER 767; Ormrod's case infra; Carberry v. Davies, (1969) 2 All ER 817;

Vandyke v. Fender, (1970) 1 All ER 335.

3. Hewitt v. Bonvin, (1940) 1 KB 188.

4. Wheatley v. Patrick, (1837) 2 M&W 650; Pratt v. Patrick, (1924) 1 KB 488.

5. Morgans v. Launchbury, (1972) 2 All ER 606 (609).

6. Hewitt v. Bonvin, (1940) 1 KB 188; Klien v. Caluori, (1971) 2 All ER 701; Nottingham v. Albridge, (1971)
2 QB 739.

7. (1953) 2 All ER 753.

his servant, his friend, or any one else. It is being used wholly or partly
on the owner's business or for the owner's purpose, the owner is liable
for any negligence on the part of the driver. The owner only escapes
liability when he lends it or hires it to a third person to be used for
purposes in which the owner has no interest or concern."

It may be pointed out that although there is a presumption that a person who
uses another person's vehicle is the latter's agent, the owner will not be liable
unless he has delegated to the user some duty or task. A beautiful illustration on
this point is the case of Morgans v. Launchbury.1

The facts were that the respondents were injured while being negligently driven
by M in the appellant's car. The appellant had allowed her husband to use the
car, and the husband, being intoxicated, had requested M to drive. There was
evidence that husband had promised the appellant that, should he ever become
intoxicated, he would ask another person to drive the car. It was held by the
court that M was not the appellant's agent since she had not delegated the task
of driving to him. The appellant was, therefore, not liable for the respondent's
injuries.

Similarly, if an agent is not acting within the scope of his authority the master
will not be responsible. This was so held in the case of State Bank of India v.
Shyama Devi.2

The facts were that the plaintiff's husband gave some amounts and cheques to
his friend, who was an employee of the State Bank of India, to deposit the same
in the Plaintiff's account. The employee misappropriated the amount: It was held
by the Supreme Court that the defendant bank could not be made liable, for,
when the employee committed the fraud he was not acting either as an agent or
an employee of the bank but in his private capacity as the depositor's friend.

In Krishan Kaushik v. Union of India3 postal employee deposited nominal amount

in petitioner's account and he forged passbook with entry of full amount issued.
The court directed to pay post office to sum deposited with interest to the
petitioner.

Village Education Committee, an agent of State government had the

responsibility of maintaining school building. Due to collapse of pillar and portion
of boundary wall, two school children died. There was breach of duty on the part
of school authorities to ensure safety of school premises in all respects. It was
held that the state government was vicariously liable for breach of duties by
 Village Education Committee.4

In C. Ranganathan v. Government of Tamil Nadu5 writ petition under Article 226

was filed against the authorities of government hospital for medical

_____________________________

1. 1973 AC 127.

2. MANU/SC/0360/1978 : AIR 1978 SC 1263.

3. AIR 2005 Del 276.

4. Dharanidhar Panda v. State of Orissa, MANU/OR/0223/2004 : AIR 2005 Ori 36.

5. MANU/TN/1229/2004 : AIR 2005 Mad 171.

negligence. The father of the deceased stated in his affidavit that his daughter
laid in the corridor of the hospital bleeding through nostrils, mouth and ears but
was not attended by hospital staffs which was not controverted by filing any
counter affidavit. The court held that the authorities of the hospital were
negligent and the fact that government hospitals treat parties freely does not
disentitle patients to get compensation for loss due to negligent acts of
authorities.

In case of State of Kerala v. P.G. Kumariamma, AIR 2011 (NOC) 250 (Ker) the
plaintiff asserted that she was given assurance by doctor that once she
underwent laparoscopic sterilisation, she would not conceive again. She was also
not informed about possible failure of operation. There was evidence to show the
possibility of negligence on part of medical practitioner, who had carried out
sterilisation operation. There was no attempt from the side of State at all to
show that there was no negligence on the part of surgeon, who had conducted
sterilisation operation. It was held that subsequent pregnancy was due to
negligence by medical practitioner hence State was held liable to pay
compensation.

3.2 Partners

The liability of partners is governed by the Partnership Act, 1932. Section 26 of

that Act provides:

Where, for any wrongful act or omission of any partner acting in the
course of the business of the firm, or with the authority of his copartners,
loss or injury is caused to any person not being a partner in the firm...
the firm is liable therefore to the same extent as the partner so acting or
 omitting to act.

And it is further provided in section 25 that the liability of the partners is joint
and several.

From the above provisions, it is to be noticed that the general effect of section
26 is in line with the rules of vicarious liability i.e., responsibility rests either
upon the act in question being "in the ordinary course of business" or upon the
principle of authorisation. Thus partners are vicariously liable for torts committed
by their copartners acting in the ordinary course of the firm's business. It was so
held in the case of Hamlyn v. Houston and Co.1, where in order to discover what
contracts were being made by a business competitor, a partner in the defendant
firm bribed his clerk. It was held by the court that the partner was acting in the
course of the firm's business and the fact that he acted dishonestly did not
exonerate the firm.

3.3 Master and servant

The liability of the master for the tort committed by his servant is based on the
maxim "respondent superior", which means, superior is responsible or let the
principal be liable. This liability also derives its validity from the maxim `qui facit
per alium facit per se', which means, he who employs another to do something
does it himself or "he who does an act through another is deemed in law to do it
himself.2 Before analysing the principles governing this type of liability, it is
necessary to find out, who is a servant?—and assuming a person to be such,
"what are the limits of the master's responsibility? Since those limits are based
"within the course of employment", the second question resolves itself into a
description of that "course of employment."

3.3.1. Who is a servant?

It used to be thought, by the analogy of slaves or of manual labour, that

the `servant' could be distinguished from other kinds of agents by
reference to the

_______________________

1. (1903) 1 KB 81.

2. See, Baxi A. Singh v. Union of India, (1973) 75 PLR 1.

degree of control exercised, or exercisable, over him by his master.

Traditionally, therefore, the test for relationship of master and servant is
that of control. This can be ascertained from the fact that whether a
person is employed under a "contract of service" as distinct from
 "contract for service." Under the "contract of Service" a master has the
control over the servant by ordering or requiring him "what is to be done"
and "how it shall be done." If a master can control a man by ordering him
"what is to be done" and "the manner in which (i.e. how) his work is to
be done", then, it was said, the man is a servant; otherwise he is not.

But such a test is no longer regarded as the sole criterion because of the
extension of vicarious liability in the modern times.1 The first test "what is
to be done" is still required in every case of masterservant relationship,
but the second test "how it shall be done" (or the manner in which the
work is to be done) is not satisfactory. As for example, at one time
hospital authorities were not held to be vicariously liable for the activities
of their professional staff because they lacked the power of control over
the manner in which the work was to be done.2 But this is no longer the
law. Now the hospital authorities are held liable not only for the
negligence of nursing staff, but also for that of radiographers in
wholetime service3, resident house surgeon4, and wholetime medical
officer or surgeon5. As Lord Parker C.J., has rightly said in the case of
Mooren v. Swinton & Pendlebury Council6, that "the cases have over and
over again stressed the importance of the factor of superintendence and
control, but that is not the determining test is quite clear. Clearly
superintendence of control cannot be the decisive test when one is
dealing with a professional man, or a man of some particular skill and
experience."

Thus, the second test "how it shall be done" has failed in respect of
professional man like doctors, surgeons or persons having particular skill
and experience like the master of a ship, or the captain of an aircraft,
because the master can not order them as to how the work is to be done.
It has, therefore, now been recognised that the absence of such control
"how it shall be done" is not conclusive against the existence of a
"contract of service". Various attempts have been made by the judges to
find a suitable test. For example, the Supreme Court of India in
Dharangadhara Chemical Works Ltd. v. State of Saurashtra 7 laid down
that the existence of the right in the master to supervise and control the
execution of

______________________________

1. See Pollock on Torts, 15th Edn., pp. 6263; Century Ins. Co. v. N.I.R.T. Board, 1942 AC 509.

2. Hillyer v. Governors of Hospital, (1909) 2 KB 829; Lindley C. Council v. Marshall, 1937 AC 97.
3. Gold v. Essex C. Council, (1942) KB 203.

4. Collins v. H.C. Council quoted in Bernett v. Chelsea etc. Management Committee, (1968) 1 All ER 1068.

5. Cassidy v. Ministry of Health, (1951) 2 KB 343; Roe v. Ministry of Health, (1954) 2 QB 66.

6. (1965) 2 All ER 351. And see Walker v. Crystal Palace Football Club, (1901) 1 KB 87; Whitter v. Minister

(pensions), (197) 1 QB 156.

7. MANU/SC/0071/1956 : AIR 1957 SC 264. See also Birdhi Chand Sharma v. First Civil Judge,

Nagpur, MANU/SC/0213/1960 : AIR 1961 SC 644; Shankar B. Wagle v. State of

Maharashtra,MANU/SC/0145/1961 : AIR 1962 SC 517; V.P. Gopala Rao v. Public Prosecutor,

A.P., MANU/SC/0160/1969 : (1969) 1 SCC 704; Employees State Ins. Corp. v. Apex Engg. Pvt Ltd.,

JT (1997) 9 SC 54; Indian Overseas Bank v. IOB Staff Workers Union, AIR 2000 SC 1508; Also see, G.P.

Singh Torts, 24th Edn., (Reprint), 2004.

the work done by the servant is a prima facie test, that the nature of
control may vary from business to business and is by its nature incapable
of any precise definition, that it is not necessary that the employer should
be proved to have exercised control over the work of the employee, that
the test of control is not of universal application and that there are many
contracts in which the master could not control the manner in which the
work was done. The English Courts have also said that the control test is
no longer decisive. Lord Thankerton1 has said that there are four
essential elements of a `contract of service', (a) the master's power of
selection of his servant, (b) the payment of wages or other remuneration.
(c) master's right to control the method of doing the work, and (d) the
master's right of suspension or dismissal. According to Winfield, these
tests do not carry the matter much further; the first and last, and
perhaps also the second, are indicia rather of the existence of a contract
than of the particular kind of contract which is a contract of
service.2 Some judges have preferred to leave the question in very
general terms like Somervell L.J., who thought that one could not get
beyond the question whether the contract was "a contract of service
within the meaning which an ordinary person would give under those
words."3 It is respectfully suggested that the opinion of the ordinary man
is not a helpful guide in a matter, which causes the greatest difficulty to
the courts themselves; and indeed the `ordinary' person would hardly
think of a doctor or house surgeon, for instance, as a `servant.'

A notable case on this point is that of Ready Mixed Concrete (South East)
Ltd. v. Minister of Pensions and National Insurance4, where MacKenna J.,
held that in a "contract of service three conditions must be fulfilled. They
are (i) the servant agrees that, in consideration of a wage or other
 remuneration, he will provide his own work and skill in the performance
of some service for his master; (ii) he agrees, expressly or impliedly, that
in the performance of that service he will be subject to the other's control
in a sufficient degree to make that other master and (iii) the other
provisions of the contract are consistent with its being a contract of
service. This test is also not very satisfactory because Mackenna J., gave
some examples of provisions inconsistent with a contract of service, such
as a requirement that the person employed should provide all necessary
equipment and material at his own expense. It is difficult to avoid the
conclusion that much of this composite test assumed what it sets out to
prove.

It has been seen that various attempts have been made by the judges to
lay down a general test of masterservant relationship, but none of them
is scientific

________________________

1. Short v. J. & W.H. Ltd., (1946) 62 TLR 427 (419).

2. Winfield & Jolowicz on Tort, 1975, 10th Edn., p. 519.

3. Ready M.C. (S & E) Ltd. v. Minister of Pensions, (1968) 2 QB 497. See also, Stevenson, Jordon &

Harrison Ltd. v. Macdonald, (1952) 1 TLR, 101, where Denning L.L., said that it is often easy to recognise a

contract of service when you see it, but difficult to say wherein the distinction lies. A ships master, a

Chauffeurer and a reporter on the staff of a newspaper are all employed under a contract for service. One

feature which runs through the instances is that, under a contract of service, a man is employed as part of

a business, and his work is done as an integral part of the business; whereas under a contract for services,

his work, although done for the business, is not integrated into it but is only accessory to it.

4. (1968) 2 QB 497.

and complete. "The most that can be said is that control will no doubt
always have to be considered, although it can no longer be regarded as
the sole determining factor; and the factors which may be of importance
are such matters as whether the man performing the services provides
his own equipment, whether he hires his own helpers, what degree of
financial risk he takes, what degree of responsibility for investment and
management he has, and whether and how far he has an opportunity of
profiting from sound management in the performance of his task."

3.3.2. Lending a servant

Difficulty sometimes arises where a person who is a servant of one

employer (general employer) is lent by that employer to work for another
 person (special employer) for a particular purpose or for a period of time.
If, in such a case, the servant injures a third party then who is vicariously
responsible, the general employer or the special employer? For example.
A is the general employer of B. A lent his servant B to Mr. C (special
employer). C is, thus making temporary use of B's services. If B, in the
course of employment commits a tort against a third party, who is
vicariously responsible, the general employer A or the special employer
C? This question can be answered on the basis of an important case of
Mersey Docks and Harbour Board v. Coggins and Griffiths (Liverpool)
Ltd.1 decided by the House of Lords in 1947.

The facts were that the appellants hired out a crane to the respondents
for the purpose of unloading a ship. The appellants also provided a driver
for this crane, upon the terms that (though he was in their own general
employment) he should be the servant of the hirers for the period of
contract. Though the respondent through their servants supervised the
ordering of this driver's work, they had no power of control over his
actual management of the crane. During the unloading, the driver injured
a person by negligent working of the crane. The House of Lords held that
the appellants as the general employer of the driver were liable to injured
person.

In such situations it should be noted, a distinction is to be drawn between

cases where a complicated piece of machinery alongwith a driver is lent,
and cases where labour only, not of a highly skilled character, is lent. In
the former case, it can easily be inferred that the general employer
continues to control the method of performance since it is his machinery
and the driver remains responsible to him for its safe keeping. In the
latter case, it can be inferred that the hirer has control in the sense of
"what is to be done" and also the manner of doing it. Accordingly, the
above problem can be answered keeping in mind the words of Lord Porter
in Mersey Docks's case: "many factors have bearing on the result. Who is
paymaster, who can dismiss, how long the alternative service lasts, what
machinery is employed, have all to be kept in mind. But the ultimate
question is not what specific orders, or whether any specific orders, were
given but who is entitled to give the orders as to how the work should be
done." In such cases the power of control is presumed to be in the
general employer and

_____________________

1. (1847) 1 AC 1.

the burden of proving the existence of that power in the hirer rests on
 the general employer.

The various High Courts in India have followed the decision of Mersey
Docks' case.1 A case worth mentioning in this area is that of Kundan Kaur
v. Shanker Singh.2

The facts were that partners of a firm, Shanker & Tarlok, temporarily
gave their truck alongwith a driver on hire to one J.T. Co. for the purpose
of transporting goods from one place to another. Due to negligent driving
of the driver there was an accident. An employee of J.T. Co., who was
sitting in the truck by the side of the driver, was killed in the accident.
The question arose who should be liable, the general employer (Shanker
& Tarlok) or the special employer, the hirer. It was held by the High
Court that the general employer should be liable. The court followed the
principles laid down by the House of Lord in Mersey Dock's case that
there was only transfer of services and not the control of the driver from
the general employer to the hirer of the vehicle.

Similarly in the case of Rajasthan State Road Transport Corp. v. Kailash

Nath Kothari3, the facts were that the bus which met with an accident
was hired along with the driver by the Corporation from a private owner.
Although the driver continued to be on the pay roll of the owner, his
services were transferred alongwith complete control to the Corporation
under whose directions, instructions and commands the driver was to ply
the bus. Anand J., observed:

"The general proposition of law that an employer, i.e., the person

who has the right to hire and fire the employee is generally
responsible vicariously for the tort committed during the course of
employment, is a rebuttable presumption. If the original employer
is able to establish that when the servant was lent, the effective
control over him was also transferred to the hirer, the original
owner can avoid his liability. In such a case hirer will be held
vicariously liable for the tort committed by the concerned
employee."

3.3.3. The scope (or course) of employment

The fact that one man is in a legal sense the `servant' of another does
not in itself render the `master' liable for any and every tort which the
servant may commit. The master will only be held liable for such torts as
are committed by the servant in the course of employment. The question,
therefore, arises: what is "in the course of employment"? An act is
deemed to be done in the course of employment when the servant
 executes the orders of the master. It may be where (a) the master has
ordered the servant to commit a wrongful act, or (b) the wrong may be
due to the servant's want of care in carrying out the orders of the
master.4 In the first category there is no difficulty because the master's
order is itself

____________________________

1. N.S. Co. v. Haripada, MANU/WB/0144/1958 : AIR 1958 Cal 597; Bhaiya Lal v.

Rajrani, MANU/MP/0069/1960 : AIR 1960 MP 147; M.S.R. Pillai v. K.R.K.K. Chettiar, AIR 1984 Mad

362; Union of India v. J. Alva, AIR 1970 Mys 13.

2. AIR 1966 Punj 394.

3. MANU/SC/0849/1997 : AIR 1997 SC 3444.

4. See, Sir Frederick Pollock on Tort, 15th Edn., pp. 6667; See also I.C. Santra v. Satish Chunder Giri,

(1902) Cal 207 (211).

wrongful as for example, master orders the servant to throw filth and
waste material on the land of another person, or, orders the servant to
drive the motor cycle on the land of another person without his
permission. In such kind of cases the master will be liable for the tort of
nuisance or trespass committed by his servant due to specific orders of
the master. Such kinds of cases generally fall under the maxim qui facit
per alium facit per se, i.e., he who does an act through another is
deemed in law to do it himself. In the second category, it may be noted,
that the master's order is not in itself wrongful, but the servant executes
the orders of the master in a wrongful manner. As for instance, the
master would be liable if he authorised the servant to drive his car and he
drove negligently1, or he authorised the servant to prevent passengers
from taking the wrong train and the servant injured the plaintiff by
pulling him violently out what was in fact the right one2, or where a clerk,
who was permitted to use a lavatory in his employer's office, negligently
left a tap turned on and premises below were flooded.3 Each one of these
acts of the servants are considered within the course of employment.
Such kind of cases generally fall under the doctrine of `respondent
superior' i.e., superior is responsible or let the principal be liable. But
where the acts done by the servant are not within the course of
employment, the master will not be liable.

In determining whether a particular act or omission is, or is not within the

course of employment, it may sometimes help to apply fairly simple
tests. For example, where a man commits a tort (such as causing injury
 by negligence) in the course of a journey which he is employed to
undertake, it may be relevant to ask whether the accident took place on
his authorised route. For if it did, it is reasonable to presume that at the
time this servant was "on his master's business,4 if it did not, the same
may still be true if, as servants will, he merely deviated from his duty by
making a detour from his instructed course. But if the accident took place
far from the route, when the servant had departed from his work in order
to meet his friend or on a frolic of his own", it will be reasonable to hold
that, at that time, he was not acting in the course of employment. And a
similar distinction may be made where considerations other than the
place of commission of the tort fall to be determined.5

But in general there can be no golden rule for determining "within the
course of employment" and every case must turn upon its special facts.
The following illustrations are therefore intended as guides, by way of
contrast, and nothing more, to show how the courts approach the
decision of this problem.

3.3.4. Carelessness of servant

The following cases illustrate that the wrong may be due to the servant's
want of care or negligence in carrying on the work or business in which
he is employed.

_______________________

1. Limpus v. London Genl. Omnibus Co., (1862) 1 H&C 526.

2. Bayley v. Menchester, S & L Rly Co., (1873) LR 8 CP 148.

3. Ruddiman & Co. v. Smith, (1889) 60 LT 708.

4. Joel v. Morison, (1834) 6 C&P 501 (503).

5. Uddin v. A.P. Cement Manufacturers Ltd., (1965) 2 All ER 213.

In Williams v. Jones1, the defendant employed his servant to make a

signboard in a shed tent by the plaintiff. The servant, in lighting his pipe
whileso engaged, negligently set fire to the shed. The court of Exchequer
Chamber, by majority, held that there was no negligence in making the
signboard (i.e., master's business), but only in smoking the pipe (the
servant's business) and therefore the defendant was not held liable. The
two judges, in their dissenting opinion, held that lighting of the pipe
negligently was a wrongful way of performance of his duties.

The decision of the above case was not accepted by the House of Lords in
 another case of Century Insurance Co. v. Northern Ireland R.T. Board2,
where the respondents were insured by the appellants against damage
arising from the use by the respondents of their petrol tankers. One of
the respondents' drivers, while delivering petrol at a garage, lit a
cigarette, and threw the match upon the floor of the garage. This caused
an explosion and property was damaged. The appellants claimed that
they were not liable for this damage because the driver's act was outside
the course of his employment, and that the rule laid down in the case of
William v. Jones be extended to this case. Rejecting the contention of the
appellant, the Law Lords held that though the driver lighted the cigarette
for own purpose, yet it was a negligent method of conducting his work.
The Law Lords followed the dissenting opinion in William v. Jones and
held the appellants liable as the driver's negligent act was within the
course of his employment.

In Kay v. I.T.W. Ltd.3, the plaintiff was injured when the general assistant
manager of the defendant's warehouse backed a diesel truck belonging to
another firm. The manager was employed to drive cars on the premises
and backed the truck in order to make way for a van he wished to take
into the ware house. The court held the defendants liable as the act was
within the course of employment.

3.3.5. Mistake of servant

The master shall be liable if the servant has committed a mistake in the
course of employment. Bayley v. Manchester Sheffield and Lin Rly.4 is an
illustration. It was one of the duties of the porter of the defendant
railways to prevent passengers from getting into the wrong train. The
plaintiff, a passenger, was in fact sitting in the right train but the porter
under the erroneous belief that the plaintiff was in the wrong train
violently put him out of a carriage. The court held the defendant liable for
the servants' errors of judgment or improper acts committed in
exercising his authority.

3.3.6. Fraud of servant

When a servant commits a fraud in the course of performance of his

duties, the master would be liable. In Lloyd v. Grace Smith & Co.5, the
plaintiff, a widow,

_________________________

1. (1865) 3 H&C 602.

2. 2942 AC 509.

3. (1968) 1 QB 140.

4. 1882 LR 7 CP 415.

5. 1912 AC 716.

owning a small cottage and some moneys, due on a mortgage to the

extent of £ 1,000 approached the manager of the defendant, a firm of
solicitors, for advice as to how to improve her income. She was advised
by the manager to sell the cottage and call in the mortgage moneys. She
authorised the manager to sell the cottage and to collect the money. The
manager absconded with the money. It was held by the court that the
employer would be liable for all frauds committed by the servant,
whether for the benefit of the employer or for his own benefit, so long as
he was acting within the course of employment entrusted to him.

The same principle was followed by the Allahabad High court in the case
of State of Uttar Pradesh v. Hindustan Levers Ltd.1

The facts were that Hindustan Levers Ltd. wanted to deposit a sum of Rs.
50,000 by way of excise duty and, therefore, instructed their bankers,
Punjab National Bank, to deposit the said sum on their behalf in the
Government subtreasury at Ghaziabad. The bank, after making the
necessary deposit, informed the company about the payment and also
annexed to the letter a receipt (challan), purporting to have been issued
by the sub-treasury. The company after some time came to know that
the said deposit had not been credited to its account at the subtreasury
because the accountant and the treasurer of the subtreasury had
embezzled the said amount. The court held the government liable as the
embezzlement was committed by the servant within the course of
employment.

3.3.7. Theft by servant

It was at one time the view that if a servant stole goods, his master could
not be vicariously liable as the act of stealing took the servant outside the
course of employment. This view fails to recognise that theft by the
servant is the dishonest performance of what he was employed to do
honestly, namely, to take care of the goods. Thus, in Morris v. C.W.
Martin & Sons Ltd.2, the plaintiff had sent her fur coat to X to be cleaned,
and X, with her permission, sent it to the defendant, who were specialist
cleaners. The defendants handed that coat to their servants, M, to clean
it, and M stole the coat. The court of Appeal held the defendants liable on
 the ground that the servant's tort—conversion of the coat—was a
wrongful mode of performing the task entrusted to him by the
defendants, namely, cleaning and taking care of the coat, and was thus
committed in the course of employment. Winfield agrees with the
decision but criticises the principle laid down by the court of Appeal. He
suggests that unless there are specific terms in the contract of bailment
which displace the general rules of vicarious liability, the simplest
approach to the problem of servant's theft is to inquire whether or not
the goods stolen had been entrusted to his care. If this is not the case,
then, unless the primary liability of the defendant can some how be made
out, the defendant is not liable: but if it is, then the theft was committed
by the servant in the course of his employment and this is sufficient to
make the master liable.3 The same

________________________

1. MANU/UP/0138/1972 : AIR 1972 All 486.

2. (1966) 1 QB 716; See also Mendelssohn v. N. Ltd., (1970) 1 QB 177.

3. Winfield on Tort, 10th Edn., (1977). See also Salmond on Torts, 16th Edn., pp. 480-481; L.R. Tea Co.

Ltd. v. British India S. Nav. Co. Ltd., (1967) 2 QB 250.

approach would solve the problem of damage caused by a servant to

goods which are the subject of a bailment to his master. If the goods
have been entrusted by the master to the care of servant and the servant
negligently damages them, his master will be vicariously liable to their
owner. For this purpose it makes no difference that the servant at the
time of his negligence was using the goods improperly for purposes
entirely of his own. For example, if he uses a car, bailed to his master
and entrusted to his care, for taking his friends for a ride, and then
negligently damages the car in the accident. 1 In such a case winfield
says, "he is as much guilty of negligence in looking after the car as he
would have been if the accident had occurred while he was using the car
for an authorised purpose". This may create some difficulty because if it
is a case of servant he would, in relation to a third party injured in the
same accident, be held to have been "on a frolic of his own". Lord
Denning M.R., in Morris v. C.W. Martin &Sons Ltd.2 has also said that
"how can the servant, on one and the same journey, be acting both
within and without the course of his employment? Winfield suggests that
in such a case we should recognise two claims—that brought by the car
owner and that brought by the third party. The claim of car owner is
based on the fact that the servant was negligent in looking after the car,
which he was employed to do. The third party's claim is based upon the
 fact that the servant was guilty of negligent driving at the time and place
in question. And if the servant was using the car for a joyride then he
was not at that place and at that time, in the course of his employment.3

3.3.8. Out side the course of employment

Many factors have to be taken into account in determining whether a

particular act is or is not within the course of employment; and there is
perhaps no single factor which, taken in isolation, can determine the
issue alone.

Thus it might at first sight seem reasonable that if, in committing a tort,
the servant acts for his own benefit, and not for his master's, the latter
should not be held liable;4 but this is not necessarily so.5 For, amongst
other things, in setting up a servant as his agent to do a class of acts, the
master holds him out to others as his own representative, and if in this
capacity, the servant chooses to enrich himself at the expense of others,
it is right that the person who placed him in a position to do so should be
held responsible.6

Similarly, the fact that the servant is acting outside the course of
employment, and upon his own initiative, will not necessarily place his
activities outside the course of his employment.7 Action of this kind may
sometimes be

____________________________

1. Coupe Co. v. Maddick, (1891) 2 QB 413; Tanderson v. Collins, (1904) 1 KB 628; Aitchison v. Page

Motors Ltd., (1935) 154 LT 128.

2. (1266) 1 QB 716.

3. Winfield on Tort, 10th Edn., p. 530.

4. Barwick v. English Joint Stock Bank, 1867 LR 2 Exch 259. But see Lloyd v. G.S.I. Co., 1912 AC 716.

5. In some circumstances it may be taken into account; Joseph Rand Ltd. v. Craig, (1919) 1 Ch 1.

6. See Lloyd's case, ibid.

7. Houghton v. Pikiagton, (1912) 3 KB 308.

taken in the master's interest, and may be presumed to have his implied
authority, as necessary extension of the ordinary course of duty.1 As for
instance, it is reasonable to presume that an employer intends that his
servant shall always have implied authority to protect his property; 2 and
 accordingly an employer was held liable for the action of a carter who,
while off-duty, struck and injured a boy whom he believed (though
mistakenly) to be stealing sugar from his employer's wagon.3

It may be noted that even though an act be done in the general course of
employment still it may not render the employer vicariously liable if it is
uncalled for or excessive.4 An example in the case where in seeking to
protect his employer's property the servant uses unnecessary force
against a thief.5

Likewise, when the wrongful act of the servant is not done in the course
of employment, the act is outside the course of employment even though
the servant would not have the opportunity to commit the wrong but for
being in master's employment. In State Bank of India v. Shyama Devi6,
the plaintiff's husband gave some cash to his friend, who happened to be
in the service of the defendant, for depositing the same in the plaintiff's
account in the defendant bank. He misappropriated the amount and
made false entries in the plaintiff's passbook and bank's ledgers. On an
action by the plaintiff, the court held that the defendant bank could not
be held liable for the fraud committed by such servant as he acted
outside the scope of employment.

When the act of the servant is not at all authorised by the master, the act
is considered outside the course of employment. In Beard v. London
General Omnibus Co.7, the facts briefly were that during the absence of
the driver, the conductor drove the bus and negligently caused an
accident. It was held by the court that since the driving was not the kind
of act which the conductor was authorised to do, the conductor was
acting outside the course of employment. The defendants were not held
liable.

3.3.9. Lift to an unauthorised person

In the absence of any prohibition, it is possible to infer authority in the

servant to do certain acts not covered by any positive directions. Thus, in
Pushpabai Purshottam Uderhi v. Ranjit Ginning & Pressing Co. Pvt.
Ltd.,8 the manager of the defendant company took another employee,
Purshottam, as a passenger in the company's car. He was driving the car
from Nagpur to Pandhorna on the company's business. Due to negligence
of the manager the car met with an accident and Purshottam died. The
High Court negatived the claim

________________________
1. Seymoud v. Greenwood, (1895) 1 QB 357.

2. Hyet v. Great Western Rly Co., (1948) 1 KB 345.

3. Poland v. J.P. & Sons, (1927) 1 KB 236.

4. K.B. Co. v. Saad Bin Ahmad, (1974) 2 All ER 700.

5. Warren v. H. Ltd., (1974) 1 WLR 1082.

6. MANU/SC/0360/1978 : AIR 1978 SC 1263.

7. (1900) 1 QB 530.

8. MANU/SC/0249/1977 : AIR 1977 SC 1735.

on the ground that the manager in taking the deceased as a passenger

was not acting in the course of employment. But Supreme Court reversed
the decision of the High Court and observed: "In the present case a
responsible officer of the company, the manager, had permitted
Purshottam to have a ride in the car. Taking into account the high
position of the driver who was the manager of the company, it is
reasonable to presume, in the absence of any evidence to the contrary,
that the manager had authority to carry Purshottam and was acting in
the course of employment.

But where the driver of a vehicle, without authority, gives lift to a person,
the act of giving lift is outside the course of employment. In Premwati v.
State of Rajasthan1, the driver of a jeep instead of taking it to garage
went on frolic of his own and on the way gave joy ride to some persons.
Due to negligent driving there was an accident and two of the
unauthorised persons in the jeep were killed. The court held that since
the driver was on a frolic of his own, he was acting outside the course of
employment. Apart from this, the court stated that the persons taking lift
were trespassers in the jeep because there was express or implied
prohibition from giving lift to any person. The employer, State of
Rajasthan, was not held liable.

Similarly, in the case of Jiwan Dass Roshan Lal v. Karnail Singh 2, there
was statutory prohibition of giving lift to any stranger. The driver of a
goods truck gave lift to a person in contravention of the statutory
provision. Due to negligent driving there was an accident in which that
person was killed. It was held by the court that giving a lift to a person
was outside the course of employment and that the person taking the lift
was trespasser towards whom the defendant owed no duty of care.
 Accordingly, the owner of the truck was not held liable.

3.3.10. Delegation of duty by Servant

A servant may delegate his duty in certain circumstances. Where a

servant has his master's authority to delegate or happens to delegate in
a real emergency at the time when he is unable to take permission from
his master, the person to whom he so delegates becomes the servant of
the master and the master will be liable for his negligence also.

Since the beginning of twentieth century there is an extension of this

theory so far as tortious liability of the master is concerned. If a servant,
without the authority of the master, negligently or intentionally,
delegates his duty to a person and instead of himself performing a duty
allows it to be negligently performed by that person the master will be
liable not because of the negligence of that person, but because of
negligent or intentional delegation of duty by the servant in the course of
employment. An important case of Ricketts v. Thomas Tilling
Ltd.3, illustrates this point.

_____________________

1. MANU/RH/0019/1977 : AIR 1977 Raj 116.

2. AIR 1980 P&H 167. See also Machiraju Vishalakshi v. Treasurer, MANU/AP/0135/1978 : AIR 1978

AP 310; State of Orissa v. M. Ray, AIR 1981 NOC 223; Bhaiyal Godre v.
Rajrani, MANU/MP/0069/1960 : AIR 1960 MP 147; Twine v. Beans Express Ltd., (1946) 1 All ER

202; Narayan Lal v. Rukhmani Bai, AIR 1979 MP 147. This decision is not convincing; Young v. Edward Box

and Co. Ltd., (1951) 1 TLR 789.

3. (1915) 1 KB 644.

The facts briefly were that the driver of the bus permitted the conductor
to drive the bus for the purpose of turning it in the right direction for the
next journey. The driver sat by the side of the conductor. The conductor
drove the bus negligently and knocked down the plaintiff. It was held by
the court that though the defendant was not liable for the conductor's
negligence, yet he would be liable for the driver's act in wrongfully
delegating his duties to the conductor. Pickford L.J. stated that "the fact
that he allowed somebody else to drive does not divest him of the
responsibility and duty he has towards his master to see that the bus is
carefully, and not negligently, driven."

The principles laid down in Rickett's case have been followed by the
 Supreme Court of India in the case of Sita Ram v. Santanu Prasad.1

Sitaram, who lived in a village, entrusted his car to one `D', for plying it
as a taxi in Ahmedabad. `D' was in sole charge of the taxi. He employed
`C, as a cleaner of the taxi and paid him a certain sum of amount per
month. He also trained the cleaner in driving the taxi. `D' maintained the
accounts and whenever Sitaram visited Ahmedabad, the net income from
the taxi was given to him by `D'. On certain day `D' gave the taxi to `C'
for taking the driving test and obtaining the driver's licence. While taking
the driving test, `C' suddenly took the turn and seriously injured Santanu
Prasad. The question in this case was whether Sitaram, the owner of the
car, could be held vicariously liable. It was argued that the principles laid
down in Rickett's case be followed in this case. The Supreme Court
distinguished this case with that of Rickett's case and stated, in Rickett's
case "turning the bus in the right direction for the next journey" was itself
in the course of employment i.e., for the master's business; whereas in
this case "taking the driving test and obtaining the driver's licence" was
outside the course of employment i.e., not for the master's business.
Secondly, in Rickett's case the driver was seated by the side of the
conductor at the time of negligent driving and the driver failed in his duty
to see that the bus is carefully driven; whereas in this case driver was not
sitting by the side of cleaner at the time of negligent driving. It was,
therefore, held by the court that the owner was not vicariously liable
because he had neither permitted the cleaner to drive the taxi and take
driving test nor had authorised the driver to employ any person to drive
or take driving test; and that neither the cleaner at the time of accident
was doing the master's work, nor the driver at the time of lending the car
was acting for the master's business.2

Similarly, in Baldeo Raj v. Deowati3, the truck driver sat by the side of

the conductor and allowed the conductor to drive the truck. An accident
was caused by the conductor negligently as a result of which a rickshaw
passenger was killed. The court held the master liable because the act of
the driver in permitting the conductor to drive the vehicle at the relevant
time was a breach of duty by the driver, and that was the direct causes
of the accident.

_________________________

1. AIR 1966 SC 1967.

2. See dissenting opinion of Subbarao, J. who held the master liable and also stated that the doctrine of

constructive notice is coming up.

3. 1986 ACJ 906.

In Indian Insurance Co. v. Radhabai1, the driver of a Government motor

vehicle was asked to bring ailing children to the Primary Health Centre.
The driver gave control of the steering wheel to an unauthorised person
who caused an accident. The Government was held vicariously liable for
the unauthorised mode of doing the act by the driver.2

Another worth mentioning case on this point is that of Headmistress,

Govt. Girls High School v. Mahalakshmi 3, where the `Aya' employed by
the school had a duty to arrange water for the school children. Instead of
bringing the water herself, the `Aya' asked the plaintiff, a student of 9th
standard, to fetch water in a plastic pot on the carrier of a cycle from a
tube well which was about two furlongs away. When the plaintiff was
placing the water pot on the cycle carrier, the carrier spring came out
forcibly hitting the plaintiff's right eye. Consequently she lost her right
eye. Holding the Government and the school authorities liable for a sum
of Rs. 58,000, the court stated that there was negligent delegation of
authority by their servant i.e., the Aya.

3.3.11. Express prohibition by master

Sometimes the master prohibits his servant from doing certain acts. In
such a case if the servant acts in defiance of the prohibition, the act of
the servant is considered outside the course of employment and the
master may not be liable. But this is not necessary in every case, for acts
may still be within the general scope of employment even though they
are prohibited. Thus in Limpus v. London General Omnibus Co.,4 where
the driver of a bus was prohibited by his employers from obstructing
buses of rival companies, and, in contravention of this prohibition, he did
obstruct one of them and overturned it, the employers were held liable;
for, at the time of the accident, the errant driver was doing what he was
employed to do.

It may be noted that in Limpus's case there was prohibition which "only
deal with conduct of the servant within the sphere of employment";
whereas there may be prohibition which "limit the sphere of
employment". Thus in Twsine v. Beans Express Ltd.5 where a post office
van driver gave "lift" to a person while driving on duty, it was held by the
court that the fact that he had been instructed not to do so led to the
conclusion that, in doing so, he was acting outside the course of his
employment, and that his employers were thus not responsible for his
negligence in causing injury to the passenger. Plainly, the mere fact of
prohibition cannot, of itself, delimit the course of employment. If it were
 held to do so, the whole principle of vicarious liability of the master could
be side stepped, because then the employer in order to avoid
responsibility would prohibit employees from committing torts in the
course of their employment.

________________________

1. MANU/MP/0042/1976 : AIR 1976 MP 164.

2. See also, Gyarsi Devi v. Sain Das, MANU/RH/0005/1982 : AIR 1982 Raj 30; Kilari Mammi v.

Barium Chemicals Ltd., MANU/AP/0096/1979 : AIR 1979 AP 75.

3. MANU/TN/0946/1997 : AIR 1998 Mad 86.

4. (1862) 1 H&C 526.

5. (1946) 1 All ER 202.

The principles laid down in the above two cases, Limpus and Twine, have
been followed in India. For example, in Bhaiya Lal v. Rajrani,1 it was held
by the court that the act of giving lift to an unauthorised person is totally
outside the course of employment. In Jiwan Das Roshan Lal v. Karnail
Singh,2 it was held that giving a lift to a person in contravention of a
statutory prohibition was an act outside the course of employment.

But both the Madhya Pradesh High Court and the Punjab & Haryana High
Court over-ruled their earlier decisions. In 1979 the Madhya Pradesh High
court in the case of Narayanlal v. Rukhmanibai 3 overruled its earlier
decision of Bhaiya Lal v. Rajrani,4 and held that the act of a servant,
employed to drive a vehicle from one place to another, in giving lift to a
person in disregard of a statutory rule or prohibition while driving the
vehicle in execution of the owner's business, is an act within the sphere
of employment for which the owner is vicariously liable. Similarly, the
Punjab & Haryana High Court in 1987 in the case of Prithi Singh v. Binda
Ram5, overruled its earlier decision of Jiwan Das Roshan Lal v. Karnail
Singh6 and held that when a servant has been employed to drive a
vehicle, his act of giving lift to a person in disregard of a statutory rule or
prohibition while driving the vehicle on master's business, is an act within
the course of employment. The master was held vicariously liable for the
same.

It is important to note that if the servant is totally unconnected with the

master's business, the additional act of giving lift to the unauthorised
person has been held to be outside the scope of employment. Thus, in
Premwati v. State of Rajasthan7, the driver of a vehicle took the jeep
 from a workshop and thereafter, instead of taking the jeep to the garage,
went on a spree, and on the way, he gave joy-ride to some unauthorised
persons. The driver's negligence caused an accident resulting in serious
injuries to all the unauthorised persons in the vehicle, of which two died.
It was held by the Rajasthan High Court that bringing the jeep from the
workshop to the garage was within the course of employment, but the
act of going on a spree and giving lift to unauthorised persons was
outside the course of employment and, therefore, the Government was
not liable.8

But the position would be different when the driver during the course of
his employment gives lift to another employee without any authority of
the master. In Pushpabai v. Ranjit Ginning and Pressing Co.,9 the facts
were that Mr. Y Manager of the respondent Co. was driving the
company's car on the company's business. On way he gave lift to another
employee of the respondent company. Due to the

_____________________

1. MANU/MP/0069/1960 : AIR 1960 MP 147.

2. AIR 1980 P&H 167.

3. MANU/MP/0017/1979 : AIR 1979 MP 74.

4. MANU/MP/0069/1960 : AIR 1960 MP 147.

5. AIR 1987 P&H 56.

6. AIR 1980 P&H 167.

7. MANU/RH/0019/1977 : AIR 1977 Raj 116.

8. See also, M. Vishalakshmi v. Luthern Church, AIR 1978 AP 110.

9. AIR 1977 SC 1737.

negligence of the manager-driver, there was an accident and the

employee was killed. On a suit by the widow of the employee and holding
the respondent company liable, the Supreme Court stated that the right
to permit another employee to take lift in the car was within the
ostensible authority of the manager and, therefore, the manager was
acting within the course of employment.

3.3.12. Servant and independent contractor

A servant differs from an independent contractor. As stated above, a

servant is subject to control and supervision of his master. He is under a
contract of service i.e., "what is to be done" and "how it is to be done" or
the manner in which it is to be done, is generally under the control and
supervision of his master, except where the work is technical or
professional and the master is incompetent to supervise e.g., surgery,
pilot's job etc. But an independent contractor is neither a servant nor an
agent of the employer. He is under a "contract for service" i.e., "what is
to be done". The manner in which the work is to be done is completely in
the hands of independent contractor. The independent contractor
exercises his own discretion in doing the work given to him, and the
master has no control over him. Accordingly, the master is generally not
liable for the tort committed by independent contractor.

A case on this point may be mentioned by way of illustration. 1 In B.

Govindaraja v. M.L.A. Govindaraja Mudaliar2, the defendant entrusted his
bus for repair to a workshop owner. An employee of the workshop drove
the bus and negligently injured the plaintiff. The Madras High Court held
that the owner of the bus was not liable vicariously because the workshop
owner was an independent contractor and not the agent or servant of the
bus owner.

However, the Bombay High Court in Ramu Tularam v. Amichand 3,

explained the concept of principal-agent relationship in a far-fetched
manner:

"When the car is given to the garage for repairs, the control of the
car certainly stands, transferred to the owner of the garage. But
the point is that in such a case the owner of the garage is
constituted by the owner of the car as his agent. Every thing done
or omitted to be done by the agent will be something for which
the principal will be vicariously liable……..(if) the owner of the
garage makes various purchases for the purposes of the repairs of
the car, the owner of the car has to pay for those purchases…. If
the doctrine of agency extends to this situation, there is no reason
why it should not extend to other situation where the car is
allowed by the agent to go out of the garage berserk. The liability
of the agent will have to be vicariously fastened even upon the
principal in such a case."

The Bombay High Court, thus, in the above case extended the principle of
agency by holding the repairer as agent of the owner of the car. This is
not the
______________________

1. The others are: Morgan v. Incorporated Central Council, (1936) 1 All ER 404; Devinder Singh v. Mangal

Singh, AIR 1981 P&H 53.

2. MANU/TN/0230/1966 : AIR 1966 Mad 332.

3. 1968 ACJ 54; See also V.N. Rao v. Ghanshyam Dass, 1986 ACJ 850 (AP); Anandan v. Gamathi, 1987

ACJ 596 (Ker); K.L. Mishra v. Behari Lal, 1988 ACJ 54.

correct interpretation of law. When the repairer or his servant test-drives

my vehicle, he is doing driving in furtherance of his own business rather
than acting as my agent. If the logic of the Bombay High Court is
accepted, then if a workman is welding my car and in doing so he
negligently injures somebody, I should be liable to him as workman is my
agent. There is no justification for extending the rule so wide.

Exceptions.—The general rule that an employer is not liable for

the tortious acts of independent contractor has certain exceptions,
which are as follows:

(a) Where the employer authorizes to do an illegal act, or

where he ratifies the wrongful act, he may be liable for
such an act—Maganbhai v. Ishwarbhai.1

(b) In case of strict liability, an employer is liable for the

act of an independent contractor—Rylands v. Fletcher.2

(c) The employee is also liable for the damages caused on

or near the highway by the independent contractor—Tarry
v. Ashton3, where the defendant was held liable for the fall
of the lamp overhanging the footway and injuring the
plaintiff. The lamp was fixed by the independent
contractor.

(d) If the wrong caused to the plaintiff is a nuisance by way

of withdrawal of support from the neighbour's land, the
defendant will be liable even if the act causing the damage
was done by an independent contractor—Hughes v.
Parcival.4

(e) When a master owes common law duty to his servant

and due to breach of that duty servant suffers damage, the
master would be liable even if he was acting through an
independent contractor—Wilson & Clyde Coal Co. v.
 English.5

4. Doctrine of common employment

This doctrine is an exception to the rule of vicarious liability. It was so held by the court
in Priestly v. Fowler6, that a master was not liable for the negligent harm done by one
servant to another fellowservant acting in the course of employment. Thus, doctrine of
common employment is a defence for the employer if he is able to prove that (a) the
wrongdoer and the injured person are fellow servant under him and (b) at the time of
accident they are engaged in common employment.

_______________________

1. AIR 1948 Guj 69.

2. 1868 LR 3 HL 330; See also T.C.B. Menon v. T.R. Subramanian, AIR 1968 Mad 151; Maganbhai v.

Ishwarbhai, AIR 1984 Guj 69; For intrinsically dangerous or extrahazardous activity also see Honeywill v.
Larkin Bros., (1934) 1 KB 191; M.C. Mehta v. Union of India, MANU/SC/0092/1986 : AIR 1987 SC

1086.

3. (1876) 1 QBD 314; See also Gray v. Pullen, (1864) 5 B&S 970.

4. (1883) 8 App Cas 443; See also Dalton v. Angus, (1881) 6 App Cas 740; Bower v. Peate, (1876) 1 QBD

321.

5. 1938 AC 57.

6. (1837) 3 M&W 1; See also Hutchinson v. Y.N.C.B.R. Co., (1850) 5 Exch 843.

This doctrine was subject to great criticism and, therefore it was abolished by the Law
Reform (Personal Injuries) Act, 1948, in England. But this doctrine of common
employment which has been abolished in England is still applicable in India 1 although its
scope has been made limited by the Employer's Liability Act, 1939, the Employee's
Compensation Act, 1923 (formerly Workmen's Compensation Act, 1923), the Employees
State Insurance Act, 1948 and the Personal Injury (Compensation Insurance) Act, 1963.
These acts impose liability on the employers to compensate their employees in certain
cases. Although the rigour of this doctrine has been minimised to a certain extent by
these statutes but it is submitted that the position in India in this regard is
unsatisfactory. When this doctrine has been uprooted from the land of its birth, there is
no reason to continue it in India. The remedy is in the hands of the Parliament, and not
in the hands of the court, to abrogate it as has been done in England.

___________________

1. Governor-General in Council v. Constauce Zena Wells, AIR 1950 PC 22, where plaintiff's husband, a

fireman in the defendant's railways, was killed in an accident caused by the negligence of the fellow
 employee. The Privy Council held that the doctrine of common employment was applicable in India and,

therefore, the defendant was not held liable.

© Universal law Publishing Co.

   

CHAPTER 19

VICARIOUS LIABILITY OF THE STATE

SYNOPSIS

1. Introduction

2. Acts committed in exercise of sovereign powers

3. Acts committed in exercise of nonsovereign powers

4. A new approach

5. Concluding remarks

1. Introduction

The question of the liability of the Government of India, and of the Governments of the
Indian States, has produced a large volume of case law.

The Indian Constitution is silent on the point but indirectly equates the liability of the
present Government with the former liability of the East India Company. Article 3001 by
implication refers to section 176(i) of the Government of India Act, 1935, which reads:

"The Federation may sue or be sued by the name of the Federation of India and
the Provincial Governments may sue or be sued by the name of the Province,
and, without prejudice to the subsequent provisions of this chapter, may,
subject to any provisions which may be made by the Act of the Federation or
Provincial Legislature enact by virtue of powers conferred on that legislature by
this Act, sue or be sued, in relation to their respective affairs in the like case as
the Secretary of State for IndiainCouncil might have sued or been sued if this
Act has not been passed."

The implied reference is to section 32 of the Government of India Act, 1915, which
reads:

(1) The Secretary of State in Council may sue and be sued by the name of
 Secretary of State-in-Council, as a body corporate.

_____________________________

1. Article 300 of the Constitution reads: "The Government of India may sue or be sued by the name of the

Union of India 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 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 corresponding provinces or the corresponding Indian

States might have sued or been sued if this constitution had not been enacted".

(2) Every person shall have the same remedies against the Secretary of State-
in-Council as he might have had against the East India Company, if the
Government of India Act, 1858, and this Act had not been passed.

This in turn takes us back to section 65 of the Government of India Act, 1858, which
read:

"The Secretary of State-in-Council shall and may sue and be sued as well in
India as in England by the name of the Secretary of State-in-Council as a body
corporate and all persons and bodies politic shall and may have and take the
same suits, remedies and proceedings legal and equitable against the Secretary
of State and Council of India as they could have done against, the said
company; and the property and effects hereby vested in Her Majesty for the
purposes of the Government of India, or acquired for the said purposes, shall be
subject and liable to the same judgments and executions as they would while
vested in the said Company have been liable to in respect of debts and liabilities
lawfully contracted and incurred by the said Company."

Unfortunately, the liability of the East India Company, to which the Act of 1858 referred,
was not laid down any where, but has to be ascertained from a study of the cases.
Moreover, the cases do not make clear the exact extent of the liability of the East India
Company.1 The first and most important case which spelled out the boundaries of the
liability of the Dominion Government on the basis of the liability of the East India
Company was Peninsular and Oriental Steam Navigation Company v. Secretary of State
for India-in-Council.2

The facts of the case were these: At the Government Dockyard at Kiderpore, the works
of which were situated partly on the side of a road and partly on the other side, a river
steamer belonging to the Government was lying for repairs. On the day of accident,
certain workmen in Government employ, who had been engaged in riveting a piece of
iron funnel casing, weighing about three hundred pound, and being eight or nine feet
long and about two feet high", were carrying it, slung on a pole, along the road. These
workmen were walking in the very centre of the road, although there was enough room
for them on either side. Meanwhile, a private carriage appeared. The coachmen and
syces shouted a warning and the carriage slowed down. The workmen attempted to
move away but, seeing the carriage close to them, they dropped the iron and ran away.
The iron funnel fell down on the road with a very loud noise. Whereupon the horse,
frightened by the clang, rushed forward against the iron and was injured. The

_________________________

1. The opinion of the scholars on this point is divided. One view is that the East India Company was partly

sovereign and partly not, i.e., it was liable for non-sovereign functions. (See Basu, Commentary on the

Constitution of India, 382 (1962). Another view is that East India Company was not sovereign and that

liability always attached to it for the tortious acts of its servants, except for an `Act of State' (See Dr. V.N.

Shukla, The Constitution of India, (1964) and Indian Law Commission Report on the subject (1956).

2. 1861 Bom HCR App A1 (3). It seems somewhat ironical, said C.J. Gajendragadkar in the case of Kasturi

Lal v. State of Uttar Pradesh, AIR 1965 SC 1045, "that a judgment of this importance should not have been

reported in due course in Calcutta, and could only find a place in.............Appendix."

damages were claimed to be Rs. 350. Plaintiff brought an action for the recovery of
these damages against the Secretary of State for India-in-Council, as employer of the
workmen.

In this case the question was, "Whether the Secretary of State-in-Council was liable for
the damage occasioned by the negligence of the servants of the Government, assuming
them to have been guilty of such negligence, as would have rendered an ordinary
employer liable."1

The Chief Justice, Sir Barrens Peacock gave the judgment of the Supreme Court of
Calcutta, holding the Government liable. He observed:

"We are of opinion that for accidents like this, if caused by the negligence of
servants employed by Government, the East India Company would have been
liable….2 and that the same liability attached to the secretary of StateinCouncil,
who is liable to be sued for the purpose of obtaining satisfaction out of revenue
of India.2 We are of opinion that this is a liability not only within the words, but
also within the spirit of the...... (Government of India Act, 1858) and that it
would be inconsistent with Common sense and justice to hold otherwise."3

"There can be no doubt," he observed a little later, that "the East India Company
would have been liable for the negligence of their servants or officers in
navigating a river steamer or in repairing the same or in doing any act
preparatory to such repairs."4

He then stated, by way of dictum, that there was a "great and clear distinction between
acts done in the exercise of what are usually termed sovereign powers and acts done in
the conduct of undertakings which might be carried on by private individuals without
having such powers delegated to them."4

And, a little further on:

".........where an act is done, or a contract is entered into, in the exercise of

powers usually called sovereign powers, by which we mean powers which cannot
be lawfully exercised except by a sovereign, or private individual delegated by a
sovereign to exercise them, no action will lie."5

The Peninsular case has been followed in numerous cases 6 and continues to be the law
of the land, even a century later. Some examples of cases following the

__________________________

1. Peninsular and Oriental Steam Navigation Company v. Secretary of State, (1861) Bom HCR App A1 (3).

2. Ibid., p. 2.

3. Ibid., p. 3.

4. Ibid., p. 13.

5. Ibid., p. 15.

6. Secretary of State v. Sukhdeo, (1899) 21 All 341; Shivabhajan v. Secretary of State, (1904) 20 Bom

340; Secretary of State v. Cockraft, (1912) 27 IC 723; M.C. of Bombay v. Secy. of State, (1134) 58 Bom

600; Secy. of State v. Nagarao, AIR 1934 Nag 287; Udai Chand v. Province of Bengal, (1946) 51 CWN 537.

formula of the Peninsular case may be cited. In Secretary of State v. Cockraft1, the

plaintiff's carriage overturned when one of its wheels ran over a heap of gravel which
had been negligently placed on the road by a contractor of the Government. In
Secretary of State v. Nagarao,2 the plaintiff's thumb was blown off when he innocently
picked up an unexploded grenade which had been negligently left on the ground and
threw it against a stone. In Naveen Chandra v. Secretary of State, 3 the plaintiff,
although the highest bidder for a license to sell Ganja and Sidhi (i.e., opium) at a
Government auction, was subsequently refused the license by a Custom Officer. In all
these cases recovery was denied because of the sovereign character of the activity
involved.

But in 1882 Chief Justice Turner in Secretary of State v. Haribhanji, 4 did not follow
Peninsular case. This was the first decision, which did not follow the Peninsular case.

The facts of this case were that, during the transit of certain salt from Bombay to
Madras Port, the rate of duty was increased and Haribhanji, a merchant, was asked to
pay the difference at the port of destination. He paid the amount under protest and
brought suit to recover the amount paid. It was argued by the Secretary of State-
inCouncil that this was an act of sovereign power and that therefore the court had no
jurisdiction. In a noteworthy decision, Chief Justice Turner rejected this contention,
observing that:

"The East India Company was not sovereign......The fact of the Company having
been invested with the powers usually called sovereign powers did not constitute
them sovereigns (and so) the personal exemption from suit, which is the
attribute of sovereignty, did not attach to it...... And this is further shown by the
circumstances that the Company was held liable for the negligence or
misconduct of its officers in cases in which the sovereign would not have been
held liable even on petition of right."5

And further: "On the assumption by the Crown of the direct Government of British India
it was provided that persons should have the same suits and remedies against the
Secretary of StateinCouncil as they had theretofore been entitled to maintain and
pursue against the Company. Consequently, the Secretary of State-inCouncil cannot in
this country claim on behalf of the Crown, the prerogative of immunity from suit.5

Secondly, Chief Justice Turner pointed out that the Peninsular Case had held only that
exemption from suit cannot be claimed in respect of "acts done in the conduct of
undertakings which might be carried on by persons who enjoy no delegated powers of
sovereignty." It "expressed no opinion" that all acts done in the exercise of powers
usually termed sovereign "would enjoy such immunity."5

___________________

1. (1912) 27 AC 723.

2. MANU/NA/0141/1943 : AIR 1943 Nag 287.

3. ILR (1945) 1 Cal 11.

4. ILR (1882) 5 Mad 273.

5. Ibid., p. 278.

Accordingly, "it will not be correct to say that the liability of the Government or its
officers is restricted to acts of the former class."1

Thirdly, he pointed out that acts of the Government may either be outside the province
of Municipal law or may fall within that law and that it is only of the former that the
courts can not take cognizance:

"The acts of the State of which Municipal Courts of British India are debarred
from taking cognisance, are acts done in the exercise of sovereign powers which
 do not profess to be justified by Municipal law. Where an act complained of is
professedly done under the sanction of Municipal law and in the exercise of
powers conferred by that law, the fact that it is done by the sovereign power
and is not an act which would possibly be done by a private individual, does not
oust the jurisdiction of Civil Courts."1

To put it in other words, except where the act in question is an Act of State, that is one
which is not done in a Municipal law, a suit will lie against the Government in all cases
in which such suit will be against a private person.

This case was expressly approved two years later by the full bench2 of the Madras High
Court in Vijaya Raghavan v. Secretary of State,3 in which damages was awarded to the
plaintiff for wrongful removal from the office of Municipal commissioner. But both, this
case and Haribhanji's case came up for severe criticism at the hands of Mr. Justice
Wallis in the case of Rose v. Secretary of State,4 decided in 1913. There have been very
few other cases,5 although not directly on tort, which followed Haribhanji's case. In P.V.
Rao v. Khushal Dass S. Advani,6 Chief Justice Chagla refused to accept the Peninsular
case as authority for the proposition that the Government can claim immunity in respect
of all those acts which it performs in the exercise of sovereign power. Chief Justice
Chagla observed:

"But when the Peninsular case is clearly understood, it will be seen that,
although the learned Chief Justice makes a distinction between the class of acts
which a private individual or a trading corporation can perform and those which
can be performed by a sovereign power, what the case actually decides is that
the particular case which was before the court fell in the former category. The
learned Chief Justice, with respect, was not called upon to decide that all acts
falling in the latter category were exempt from the scrutiny of the courts."

Haribhanji's case was cited with approval. The Court held that, unless the act of the
sovereign is such as to amount to an `Act of State' the Government cannot

_____________________

1. Secretary of State v. Haribhanji, ILR (1882) 5 Mad 279.

2. Consisting of Mr. Justice Keman, Mr. J.M.S. Ayar & Mr. J. Hutchins.

3. ILR 1884 Mad 466.

4. AIR (1913) 37 Mad 55.

5. The other was in Union of India v. Murlidhar Agarwal, AIR 1952 Assam 141, where C.I. Thandani

observed, "our conclusion then is that the Union of India is liable to be sued for all acts arising out of

breaches of the municipal law in the same way as a private individual."

 6. It was contended that it was action which could lie for the acts done in the exercise of sovereign power.

escape liability.1 Another decision of the post-independence period worth noting is Rup

Ram v. State of Punjab2. It was recognised there that the socialistic movement in India
is growing in strength. With its vast resources, the state has become the greatest
employer. "Under the circumstances, there is all the more reason that it should not be
treated differently from other ordinary employers, when it is engaging itself in activities,
in which any private person could engage himself." 3 His Lordship (Dulat J.) concluded by
saying that "neither on principle nor on authority, am I persuaded that State should not
be held liable for the tortious acts of its servant in the same way as an ordinary
employer would be."3

After this decision of the Punjab High Court, came the first decision of the Supreme
Court of India which directly involved the question of the liability of state for the torts of
its servants, State of Rajasthan v. Vidyawati.4 The facts were as follows:

The Rajasthan Government maintained a jeep for the use of the Collector of
Udaipur. While it was being driven back from a private workshop by a
Government driver, a pedestrian was knocked down and fatally injured. It was
proved that accident caused by the rash and negligent driving of the
Government driver. The widow and infant daughter of the victim sued the driver
and the State of Rajasthan, claiming Rs. 25,000 as damages.

It was argued by the State of Rajasthan that the State Government was not liable under
the principle enunciated in the Peninsular case, since the car was being maintained for
the benefit of the Collector's office and the "constitution" and control of the collector's
office at Udaipur is an instance of the exercise of

________________________

1. But Kushal Das case was reversed by the Supreme Court in MANU/SC/0034/1950 : AIR 1950 SC

222. However, Justice B.K. Mukherjee, dissenting, approved the reasoning of the Bombay High Court and

added. "It is true that the East India Company was invested with powers and functions of a twofold

character. They had on the one hand, powers to carry on trade as merchants; on the other hand, they had

delegated to them powers to acquire, retain and govern territories to raise and maintain armies and to

make peace and war with native powers in India. But liability of the East India Company to be sued was not

restricted altogether to claims arising out of undertakings which might be carried on by private persons;

but other claims if not arising out of Acts of State could be entertained by Civil Courts, and if the acts were

done under sanction of Municipal Law and in exercise of powers conferred by such law. He further stated

that "much importance cannot, in my opinion be attached to the observations of Sir Barnes Peacock (in

peninsular case). In that case the only point for consideration was: whether in the case of a tort committed

in the conduct of a business, the Secretary of State for India could be sued. The question was answered in

affirmative. Whether he could be sued in cases not connected with the conduct of a business or commercial
undertaking was not really a question for the court to decide." MANU/SC/0034/1950 : AIR 1950 SC
 222 (248).

2. AIR 1961 Punj 326. In this case the facts were that Rup Ram, a motor cyclist was seriously injured when

a Government's truck, belonging to P.W.D. and driven by a Government driver, struck against him. It was

contended on behalf of the State that at the time of the accident the truck was carrying materials for the

construction of a road bridge, which was in the exercise of sovereign power because the government alone

could do the same. But the court refused to accept this contention and held the state liable like an ordinary

employer.

3. Ibid., p. 339.

4. MANU/SC/0025/1962 : AIR 1962 SC 933. In Lower Court this case was known as Vidyawati v.

Lokumal, AIR 1957 Raj 309. The decision of the Rajasthan High Court was confirmed by the Supreme Court

of India.

sovereign power. The Supreme Court refused to accept this contention of the
Government. According to the court, the driving of the Jeep car from repair shop to the
collector's office was "wholly disassociated from the exercise of sovereign powers."

The Supreme court also pointed out that the true ratio decidendi of the Peninsular case
was that: "The Secretary of State-in-Council for India is liable for the damages
occasioned by the negligence of servants in the service of the Government, if the
negligence is such as would render an ordinary employer liable." Chief Justice B.P.
Sinha, who delivered the Judgment, observed:

"Viewing the case from the point of first principles, there should be no difficulty
in holding that State should be as much liable for tort in respect of a tortious act
committed by its servant within the scope of his employment and function as
such, as any other employer. The immunity of the Crown in the United Kingdom
was based on the old feudalistic notions of Justice, namely that the King was
incapable of doing a wrong and, therefore, of authorising or instigating one, and
that he could not be sued in his own courts. In India, ever since the time of the
East India Company, the Sovereign has been held liable to be sued in tort or in
contract and common law immunity never operated in India. Now that we have,
by our constitution, established a republican form of Government and one of the
objectives is to establish a socialistic state with its varied industrial and other
activities, employing a large army of servants, there is no justification, in
principle, or in public interest, that the State should not be held liable vicariously
for the tortious acts of its servant. This court has deliberately departed from the
common law rule that a Civil servant cannot maintain a suit against the Crown.
In the case of State of Bihar v. Abdul Majid,1 this court has recognised the right
of a government servant to sue the Government for recovery of arrears of
salary. When the rule of immunity in favour of the Crown has disappeared from
the land of its birth, there is no legal warrant for holding that it has any
 authority in this country, particularly after the Constitution .2

This approach of the Supreme Court was welcomed by scholars like Markose and
Gupta3 who expressed the hope that "no more will the court draw a distinction between
the socalled sovereign and nonsovereign functions of the Government.

But only three years later in Kasturi Lal v. State of Uttar Pradesh,4 the Supreme Court
modified its approach and went back to the Sovereign and non-sovereign distinction of
the Peninsular case.

_______________________

1. SCR 1954 786.

2. MANU/SC/0025/1962 : AIR 1962 SC 933.

3. Dr. A.T. Markose and Sri C.P. Gupta, 4 Journal of the Indian Law Institute, 278 (1962). See also, S.P.

Singh, The Development of Public Tort Liability in France and India: A Comparative View, Journal of the

Indian Law Institute, 92 (1971), Vol. 13, No. 1.

4. MANU/SC/0086/1964 : AIR 1965 SC 1039.

The facts in Kasturi Lal case were that one Ralia Ram, a bullion merchant and a partner
in the firm of M/s Kasturi Lal and Ralia Ram, was arrested by a police constable, 1 and
certain gold and silver was taken from him. 2 The police officers were required under the
law3 to keep bullion seized in a separate box in the treasury under lock and key.
Instead, it was kept in the police malkhana under the charge of a Head Constable,
Mohammad Amir, who misappropriated the gold and fled to Pakistan. Ralia Ram, having
been released, got back his silver but not the gold. He, therefore, brought an action
against the State of Uttar Pradesh for compensation for the loss caused on account of
the negligence of the police officers employed by State Government.

Chief Justice Gajendragadkar read the unanimous opinion of the Supreme Court holding
that the State Government was not liable, as the act of negligence was committed by
the police officers in the exercise of sovereign powers, He stated:

"Now, the power to arrest a person, to search him, and to seize property found
with him, are powers conferred on the specified officers by statute and in the
last analysis, they are powers which can properly be characterised as sovereign
powers; and so, we inevitably hark back to what Chief Justice Peacock decided
in 1861 and hold that the present claim is not sustainable."4

Thus, Gajendragadakar C.J., fully accepted the distinction drawn by Peacock C.J., in the
Peninsular case between sovereign and non-sovereign function of the State, in
determining its liability in tort. The appellant's contention that the principles enunciated
in Vidyawati's case5 should be extended was rejected by the Supreme Court. The court
distinguished the present case with that of Vidyawati's case and observed:

"It is obvious that when the Government employee was driving the jeep car from
the workshop for the Collector's use, he was employed on a task or an
undertaking which cannot be said to be referable to, or ultimately based on, the
delegation of sovereign or governmental powers of the State.... In fact the
employment of a driver to drive the jeep car for the use of a civil servant is itself
an activity, which is not connected in any manner with the sovereign power of
the State at all. That is the basis on which the decision must be deemed to have
been founded; and it is this basis which is absent in the case before us."6

The Supreme Court then stated the rule for determining the liability of the State for the
tort of its servants as follows:

____________________________

1. Ralia Ram was arrested under section 54 (1) (iv) of the Code of Criminal Procedure.

2. Section 550 of Cr. P.C. confers powers on police officers to seize property suspected to be stolen.

3. Regulation 166 of U.P. Police Regulation.

4. MANU/SC/0086/1964 : AIR 1965 SC 1039 (1048).

5. MANU/SC/0025/1962 : AIR 1962 SC 933.

6. Ibid., p. 1048.

"If a tortious act is committed by a public servant and it gives rise to a claim for
damages, the question to ask is: was the tortious act committed by the public
servant in discharge of statutory functions which are referable to, and ultimately
based on, the delegation of the sovereign powers of the State to such public
servant? If the answer is in affirmative, the action for damages for loss caused
by such tortious act will not lie. On the other hand, if the tortious act has been
committed by a public servant in discharge of duties assigned to him not by
virtue of the delegation of any sovereign power, an action for damages would
lie. The act of the public servant committed by him, during the course of his
employment is, in this category of cases, an act of the servant, who might have
been employed by private individual for the same purpose."1

Thus, the Supreme Court in Kasturi Lal's case accepted the distinction between
sovereign and nonsovereign functions first propounded by C.J., Barnes Peacock in
Peninsular case in the year 1861 and held that the government would not be liable for
the tortious acts of its servants committed in the exercise of sovereign functions. It is
unfortunate that the Supreme Court followed the dictum of Peninsular's case rather
than its own decisions in Vidyawati's case. However, this has now become the law of the
land and has been followed in numerous cases. A few cases may therefore be
mentioned.

2. Acts committed in exercise of sovereign powers

In State of Orissa v. Padmalochan,2 the facts were that there was an apprehension of an

attack on the office of the SubDivisional Officer. The Orissa Military Police, under the
supervision of a Magistrate, cordoned the area. Some police personnel assaulted
members of the mob without order from the Magistrate, as a result of which the plaintiff
was injured. The court held that posting of military police for cordoning the S.D.O's
office was in exercise of sovereign power. The fact that the police personnel committed
excess in the discharge of their sovereign functions would not take away such acts
outside the purview of sovereign functions.

In State of Madhya Pradesh v. Chironji Lal, 3 the Police made lathi charge on a student's
procession and a loudspeaker, belonging to the plaintiff and being used in the
procession, got damaged. When the owner brought an action for damages, it was held
by the court that maintaining law and order, including quelling of riot is a sovereign
function. The state was not held liable.

In Highways Department of South Arcot v. Vedanthachariar4, the plaintiff's son died in a

bus accident due to the giving way of the culvert and the collapse of the bridge
maintained by the Highway Department of the Government. It was held by the court
that the maintenance of highways is a sovereign function and, therefore, the
government was not made liable.5

___________________________

1. Vidyawati's case, AIR 1962 SC 1046.

2. MANU/OR/0014/1975 : AIR 1975 Ori 41.

3. MANU/MP/0021/1981 : AIR 1981 MP 95.

4. (1972) 1 MLJ 71.

5. See Secretary of State v. Cockraft, AIR 1915 Mad 993.

In Baxi Amrik Singh v. Union of India1, there was an accident between a military truck
and a car due to negligent and rash driving by the military truck driver, who was also an
employee of the military department. Amrik Singh, who was in the car, received serious
injuries. In an action by Amrik Singh for damages, it was contended on behalf of the
Government that the military driver was acting in exercise of the sovereign power of the
Government at the time of accident because he was on duty to check
Armypersonnelonduty through out that day. The court held that checking of the Army-
personnel-on-duty was a function intimately connected with the Army discipline and it
could only be performed by a member of the Armed-force who is detailed on such duty.
Accordingly, the military driver was discharging the sovereign functions of the State and
therefore, the Union of India was not liable.

In Ram Gulam v. Government of Uttar Pradesh2, the Police authorities, after recovering
stolen property, deposited it in the malkhana and from where it was again stolen. The
court held the Government not liable as its servant was performing sovereign function
of the State in discharge of obligations imposed upon him by law.

In Mohammad Murad v. Government of Uttar Pradesh3, the District Judge passed an

order whereby jewellery belonging to a minor was entrusted with the Nazir for safe
custody. The duty of the Nazir was to keep the jewellery in a box and this box was to be
sent every evening to the Government treasury for safe custody and to be brought back
every morning from there.4 The Nazir failed to perform his duty of sending the cash box
to the treasury and the jewellery was stolen. In an action by the plaintiff, the court held
that where the servant acts in performance of the duties imposed upon him by law, the
master has no right to control him nor to give any instructions. He is obeying the law
and not the master and naturally the master should not be held liable for anything
which the servant does while carrying out the statutory duties. The Government was,
therefore, not liable.

In State of Madhya Pradesh v. Devilal5, the Revenue officer ordered the seizure of cut
wood in exercise of his statutory powers and wood so seized was entrusted to a
Supratdar under the exercise of statutory powers. The Supratdar misappropriated the
wood. In an action by the plaintiff, the State was not held liable be cause the wrongful
act was done in the exercise of statutory power.

In State of Uttar Pradesh v. Tulsi Ram6, the facts were that five persons were
prosecuted for offences punishable under different sections of the Indian Penal Code. On
appeal, one Tulsi Ram, out of the five accused persons, was acquitted by the Court of
Sessions. On further appeal to Allahabad High Court one more

_______________________

1. (1972) 1 MLJ 71.

2. MANU/UP/0031/1970 : AIR 1970 All 206.

3. MANU/UP/0029/1956 : AIR 1956 All 75.

4. See, Rule 9 of Chap. XII of the General Rules (Civil) 1926.

5. MANU/MP/0033/1970 : AIR 1970 MP 179.

6. MANU/UP/0034/1971 : AIR 1971 All 162.

person, Ram Prakash, was acquitted but the conviction of three persons was affirmed.
The order of the High Court to arrest these three persons was sent to Sessions court,
which, in turn sent it to District Magistrate. The District Magistrate forwarded it to
Judicial Officer for compliance. The Judicial Officer negligently signed the warrant of
arrest, prepared by his Ahalmad, in which those two acquitted were also included
alongwith three others. The plaintiff, an acquitted person, was, therefore, also arrested
by the police. He filed a suit for false imprisonment against the State of U.P. as well as
the Judicial Officer.

The High Court held that the Judicial Officer was carrying out a duty imposed upon him
by law to carry out the directions of the Sessions Judge and, therefore, the State of
U.P., was not liable. But it was pointed out that the exemption of the state from liability
does not exempt the guilty government servant unless he was otherwise protected. The
Judicial Officer was not exercising judicial function but ministerial function and as such
the High Court passed a decree of Rs. 500 against the Judicial Officer.

3. Acts committed in exercise of nonsovereign powers

In Union of India v. Jasso1, a military driver on a military truck was carrying coal from
military depot to Army Headquarter's office in Simla for the purpose of heating the
rooms. The court held the Government liable as it was a nonsovereign function which
could be performed by a private individual.

In Union of India v. Sugrabai2, a military driver on a military truck was transporting

machines and other equipments from military depot to military training school. The
Bombay High Court applied an other test by asking a question: Was it absolutely
necessary for the Government to have that worked performed by its own employees?
The Government could not prove this. Accordingly, the court held that it was a function
which could be performed by a private person and, therefore, held the Government
liable.3

In Satyawati Devi v. Union of India 4, the two teams of Hockey and Basket-Ball of Air
Force personnel were being carried on an Air Force vehicle, driven by an Airforce driver.
Due to negligence of the driver, plaintiff's husband was killed in the accident. In an
action by the widow, it was contended on behalf of the Government that physical
exercises were very necessary to keep the Army in proper shape and therefore, such an
act should be considered as sovereign function of the Government. Rejecting the
contention of the Government, the Madhya Pradesh High Court held that the act of
carrying the teams to play matches could be performed by a private individual and,
therefore, it was not a sovereign function. The Government was held liable.

_______________________

1. AIR 1962 Punj 315.

 2. MANU/MH/0038/1969 : AIR 1969 Bom 13.

3. Bangia argues that "Discharge of such function by private individuals could affect the secrecy and

therefore it should have been regarded as a sovereign function." see, R.K. Bangia's comment in J.I.L.I.

(1973), p. 334 and Bangia's Law of Torts, 8th Edn., p. 47. It is submitted that the Government could not

prove this and therefore, it was regarded as nonsovereign function.

4. AIR 1967 Del 98.

In Pushpa v. State of Jammu and Kashmir 1, transporting of crushed barley for the
defence department was considered a nonsovereign function and the Government was
held liable for the tortious act of its servant.

In Nandram Heeralal v. Union of India2, the military officers were being brought back
from the place of exercise to the Combat College, Mhow. On way due to driver's
negligence, the plaintiff was injured. Held, it was not done in the exercise of sovereign
power and, therefore, government was liable.

In Union of India v. Savita Sharma3, driving of a military truck to railway Station to

bring soldiers to military unithead quarters was considered as a nonsovereign function
and the government was held liable for the injury caused to the plaintiff due to
negligence of the driver. Similarly in Iqbal Kaur v. Chief of Army Staff4, it was held by
the court that driving of a truck for imparting training to new recruits was not in the
exercise of sovereign powers and therefore, the Government was liable for the
negligence of the driver.

In Uttar Pradesh Government v. Ram Milan & Bros.5, both driver and mechanic were
servants of the U.P. Government. The driver allowed the mechanic to drive the bus in
which passengers were sitting. The driver sat by the side of him. The court held the
government liable as it was considered commercial function of the government.6

In State of Uttar Pradesh v. Hindustan Lever Ltd.7, the facts were that Hindustan Lever
Ltd., instructed the bankers, Punjab National Bank, to deposit excise duty on their
behalf in the Government subtreasury and debit their current account for the amount.
The Bank deposited the said sum of amount in the subtreasury and informed the
Company. Later on the Company (Plaintiff) came to know that the said sum of amount
has not been actually credited in its name at the subtreasury because the treasurer and
the accountant embezzled the said amount. It was found as a matter of fact that the
accountant of the treasury was acting in the exercise of statutory powers at the time
when he received the money. The court held the Government liable on the ground that
although the accountant was acting under statutory powers but the type of activity i.e.,
to receive money, was not of sovereign nature. It was considered "as a banking
business which could have been performed by a private individual." Justice S. Chandra,
observed that "functioning under statutory power is by itself not sufficient to claim
immunity. The statutory functions must be referable to the traditional concept of
Government activity in which the exercise of sovereign power was involved... On facts
the position in the present case is that the

________________________

1. AIR 1977 NOC 217 (J&K).

2. AIR 1978 MP 209.

3. AIR 1979 J&K 6.

4. AIR 1978 All 417.

5. AIR 1967 All 387.

6. See also, Sita Ram v. Santanu Prasad, discussed supra; Shyam Sunder v. State of
Rajasthan, MANU/SC/0208/1974 : AIR 1974 SC 890.

7. MANU/UP/0138/1972 : AIR 1972 All 486.

Government was running a sub-treasury at which multifarious activities were

undertaken... in our opinion, this is an ordinary banking business. Any private individual
could run a banking business by employing accountants and treasurers to receive
money for being credited to the accounts of other individuals or even of State
departments by an agreement with them." Accordingly, "this is an activity which could
be carried on by a private individual and so the liability of the Government would be the
same as of a private individual."

Similarly, in Shyam Sunder v. State of Rajasthan 1, it was held by the Supreme Court
that since the driver of a truck engaged in famine relief work was negligent, the State
was liable for the same because the famine relief work is not a sovereign function. It is
a work which can be performed by private persons.2

In State of Gujarat v. Memon Mohomed Haji Hasan 3, where the confiscation by the
Customs authorities was set aside in appeal and the goods were directed to be returned
which order could not be complied as the goods had already been disposed of under the
order of a Magistrate, it was held by the Supreme Court that the suit for recovery was
maintainable on the ground that when the seizure was declared as illegal, the State
became the bailee of the goods and it had a statutory obligation to return the goods.
Similarly, in Basava Kom Dyamogouda Patil v. State of Mysore 4, the question arose
regarding powers of the court in indemnifying the owner of property which is destroyed
or lost whilst in the custody of the court. The goods were seized from the possession of
the accused. These goods were produced by the police before a magistrate who directed
the subinspector to keep them with him in safe custody to get them verified and valued
by a gold-smith. When the appeal of the accused was allowed and the goods were
directed to be returned, it was found that the goods had been lost, while kept in the
police guardroom. It was held by the Supreme Court—"As the seizure of property by the
police amounts to a clear entrustment of the property to a Government servant, and the
loss or damage is suffered by the plaintiff due to negligence of the officers of the State,
the State is liable".

In Pushpa Thakur v. Union of India5, the facts were that a military driver on a military
truck was transporting ration and some sepoys, after 1971 IndoPak war. Due to
negligence of the driver, the truck went on the wrong side of the road and hit a culvert.
Four persons including the appellant who were sitting on the culvert sustained severe
injuries. The Supreme Court in a brief order said that on the facts and circumstances of
the case the principle of sovereign immunity of the States for the acts of its servants
had no application and the state was liable.

In the very important case of N. Nagendra Rao & Co. v. State of Andhra Pradesh 6, the
Supreme Court of India affirmed the law laid down in the case of

____________________________

1. MANU/SC/0208/1974 : AIR 1974 SC 890.

2. See also, A.H. Khodwa v. State of Maharashtra, 1996 ACJ 505 (SC).

3. MANU/SC/0016/1967 : AIR 1967 SC 1885.

4. MANU/SC/0675/1977 : AIR 1977 SC 1749.

5. 1984 ACJ 559 (SC).

6. MANU/SC/0530/1994 : AIR 1994 SC 2663.

Kasturi Lal, but the judges pointed out in a very elaborate judgment that Kasturi Lal's
case was not correctly decided and that the doctrine of sovereign immunity has no
relevance in the present day context. The two judges of the Supreme Court could not
overrule the decision of Kasturi Lal because it was a decision of the Constitutional
Bench. The facts in this Nagendra Rao & Co.'s case were that the appellant carried on a
business in fertilisers and foodgrains. Huge stock of foodgrains and fertilisers was seized
from the appellant's premises under the Essential Commodities Act, 1955. In
proceedings taken under the said Act, no violation of any control order was found and
the stock seized was ordered to be released. When the Appellant went to take the
delivery, he found that the stock had been spoilt both in quantity and quality. Instead of
taking delivery of the stock, the appellant sued for compensation against the State. The
trial court found negligence of the officers of the State and decreed the suit. But the
High Court dismissed the suit relying upon Kasturi Lal. Distinguishing Kasturi Lal and
overruling the High Court, the Supreme Court said that maintenance of law and order
may be an inalienable sovereign function of the State in the traditional sense but power
of regulating and controlling essential commodities as conferred by the Essential
Commodities Act did not pertain to that area and the State cannot claim immunity if its
officers are negligent in exercise of those powers. Thus, the Supreme Court held that it
was a nonsovereign function and, therefore, the state was liable.1 However, the judges
were dissatisfied with the existing bad law and therefore suggested legislative
enactment.2

_____________________________

1. It is important to note that in those cases where the State is not liable vicariously on the basis of

sovereign immunity, the public servant is liable (see State of Uttar Pradesh v. Tulsi
Ram, MANU/UP/0034/1971 : AIR 1971 All 162.) The public servant also cannot take the defence

that the wrong was committed in the course of discharging some statutory function or carrying out the

orders of superiors (see Venkappa v. Devamma, 1966 Mad 1381). Subordinates are not the servant of the

superior officers therefore, superior officers can not be made liable vicariously. But a superior officer is

liable directly if he has expressly authorised the wrong to his subordinate (Mersey Docks Trustees v. Gibbs,

1866 LR 1 HL 93). In cases where statutory discretion is conferred, the persons entrusted with the

discretion is not liable if the discretion is exercised with due care and there is simply an error of judgment,

but there would be liability if he unreasonably failed to carry out his duty to consider the matter or where

he reached a conclusion so unreasonable as again to show failure to his duty. For example, two excentral

ministers who had arbitrarily allotted petrol pumps and shops from discretionary quota by malafide exercise

of their power were required to pay damages to the Government amounting to Rs. 50. lacs in one case and

Rs. 60. lacs in the other case. (see, Common Cause v. Union of India, AIR 1996 SC 1619); On a review

petition decided by a bench of three judges, it was held that the allotment of Petrol Pumps was wholly

arbitrary but it set aside the award of damages on the ground that tort of misfeasance in public office was

not established and that the State could not be awarded damages in a petition under Article 32 for violation
of Fundamental Rights of a citizen by its officers, MANU/SC/0349/1997 : AIR 1997 SC 1483; See

also Shivsagar Tiwari v. Union of India, (1996) 7 Scale 643; See also Home Office v. Doreset Yachat Co.,

1970 All ER 294 (HL).

2. The Judges, J. Sahai & J. Hansaria, of the Supreme Court observed: "Before parting with this case, the

court shall be failing in its duty if it is not brought to the attention of the appropriate authority that for more

than hundred years, the law of vicarious liability for negligence of its officers has been swinging from one

direction to other. Result of all this has been uncertainty of law, multiplication of litigation, waste of money

of common man and energy and time of the courts. Necessity to enact a law in keeping the dignity of the

country and to remove the uncertainty and dispel the misgivings, therefore, cannot be doubted.

4. A new approach

In spite of the suggestions made by the Supreme Court1, the Parliament has not
changed the existing bad law with the result that the concerned citizens have been
suffering. In such a situation and being dissatisfied with the above anachronistic law, a
new line of action under writ jurisdiction (Article 32 & Article 226) has been invoked to
render justice and compensate those whose fundamental right to life and personal
liberty under Article 21 (or any other fundamental right) of the Constitution of India, are
violated by the wrongful acts of Government officials while performing even sovereign
functions. The cases of Rudal Sah v. State of Bihar2, Sebastin M. Hongray v. Union of
India,3 Bhim Singh v. State of Jammu and Kashmir, 4 and SAHELI v. Commissioner of
Police, Delhi5, illustrate that the defence of sovereign immunity is not available when
the State or its officers, acting within the course of employment, infringe a person's
fundamental right to life and personal liberty as guaranteed under Article 21 of the
Constitution of India.

In Rudal Sah v. State of Bihar,6 the petitioner was acquitted by the Court of Sessions in
1968 but was released by the jail authorities after 14 years i.e., in 1982. In a writ
petition under Article 32 of the Constitution, the plaintiff claimed damages for unlawful
detention of 14 years. The State could not give any justifiable reason for his unlawful
detention. The Supreme Court directed the State to pay Rs. 30,000 as interim measure
without preventing the petitioner from bringing a suit to recover further damages from
the State and its erring officials. The court observed: "where the court has already
found, as in the present case, that the petitioner's prolonged detention in prison after
his acquittal was wholly unjustified and illegal, there can be no doubt that if the
petitioners files a suit to recover damages for his illegal detention, a decree for damages
would have to be passed in that suit.

In Sebastin N. Hongray v. Union of India,7 two persons were taken into custody by army
authorities in Manipur. They were not produced in obedience to a writ of Habeas Corpus
and, therefore, it was held that those two persons must have met unnatural death while
in army custody The Supreme Court directed the Union of India to pay exemplary costs
(compensation) of Rs. One Lakh each to the wives of those persons.

In Bhim Singh v. State of J&K8 the petitioner was an M.L.A. who was illegally arrested
by the police and was detained from attending the Assembly sessions. The Supreme
Court directed the State of J&K to pay Rs. 50,000 as compensation to the petitioner.

____________________________

1. See also Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh, (supra).

2. MANU/SC/0380/1983 : AIR 1983 SC 1086.

3. MANU/SC/0080/1984 : (1984) 3 SCC 82.

4. MANU/SC/0064/1985 : AIR 1986 SC 494.

5. MANU/SC/0478/1989 : AIR 1990 SC 513.

6. MANU/SC/0380/1983 : AIR 1983 SC 1086.

 7. MANU/SC/0080/1984 : (1984) 3 SCC 82.

8. MANU/SC/0064/1985 : AIR 1986 SC 494. 

In Saheli v. Commissioner of Police, Delhi, 1 the Supreme Court, on a writ petition

allowed Rs. 75,000 as damages against the Delhi Administration to the mother of the
child of 9 years who died due to beating and assault by a police officer

Similarly in Nilabati Behra v. State of Orissa,2 the petitioner's son died as a result of

injuries inflicted on him while in police custody. The petitioner sent a letter to the
Supreme Court which was treated by the court as a petition under article 32 of the
Constitution. Holding the State of Orissa liable, the Supreme Court awarded
compensation of Rs. 1,50,000 to the petitioner. Verma J., observed: "Award of
compensation in a proceeding under Article 32 by this court or by the High Court under
Article 226 of the Constitution is a remedy available in public law based on strict liability
for contravention of fundamental rights to which the principle of sovereign immunity
does not apply, even though it may be available as a defence in private law in an action
based on tort."3

In C.E. & R. Centre v. Union of India4, on a petition under Article 32, directions were
issued by the court to examine workers engaged in asbestos industry and it was found
that the workers were suffering from occupational health hazards. The court awarded
compensation of Rs. One Lac to each worker on the ground that "right to health,
medical aid to protect the health and vigour of a worker while in service or post-
retirement is a fundamental right under Article 21." Ramaswami J., further observed:
"It is, therefore, settled law that in public law claim for compensation is a remedy
available under Article 32 or 226 for the enforcement and protection of fundamental and
human rights. The defence of sovereign immunity is inapplicable and alien to the
concept of guarantee of fundamental rights."

In C.R.K. Reddy v. State of Andhra Pradesh,5 the facts were that an undertrial prisoner
was killed by some miscreants who entered the prison and threw bombs. It was found
that prison officials were grossly negligent in guarding the prison. In a petition for
damages, the defence of sovereign immunity was negatived on the ground that it was a
case of deprivation of life under Article 21 due to the negligence of the prison officials
and the State was held liable. In R. Gandhi v. Union of India 6, the Madras High Court in
a public interest petition under Article 226 allowed compensation of Rs. 33.39 lakhs
against the State to 39 Sikh families as it had failed to protect the properties of these
families in riots let

________________________________

1. MANU/SC/0478/1989 : AIR 1990 SC 513.

 2. MANU/SC/0307/1993 : AIR 1993 SC 1960.

3. See also, Chranjit Kaur v. Union of India, MANU/SC/0342/1994 : AIR 1994 SC 1491, where an

Army officer died due to act or omission of the concerned authorities, the court allowed Rs. 6 lacs
compensation under Art. 21. In Inder Singh v. State of Punjab, MANU/SC/0064/1995 : AIR 1995 SC

312, the court awarded Rs. 1.5 lacs compensation to each of the seven persons abducted and presumably

killed by Punjab Police. See also Punjab & Haryana High Court Bar Association v. State of Punjab, (1996) 4

Scale 416.

4. MANU/SC/0175/1995 : AIR 1995 SC 922.

5. MANU/AP/0163/1989 : AIR 1989 AP 235.

6. MANU/TN/0225/1989 : AIR 1989 Mad 205; See also Inderpuri Genl. Store v. Union of India, AIR

1992 J&K 11 where State was held liable by applying Art. 21.

loose in Coimbatore after the assassination of former Prime Minister Indira Gandhi, on
Oct. 31, 1984. The High Court was of the view that deprivation of property resulted in
deprivation of means of livelihood violating Articles 21 and 320A of the Constitution.
Delhi High Court also allowed compensation to Sikh riot victims on the same
reasoning.1Similarly, the Kerala High Court in the case of P.G. Pillai v. State of
Kerala,2 held that inaction by the police to render protection to the petitioner when his
hotel was ransacked by the mob violated his fundamental right under Article 19(1)(g) of
the Constitution and, therefore, the State was held liable. In all these cases, it should
the noted, the deprivation of life or property was not directly by the State or its
servants but by third parties whose acts were facilitated because of inaction by the
police. Here the third parties were neither agent nor servant of the State and therefore
there was no deprivation of fundamental right directly by the state. So the State could
have been made liable, if at all, under private law of tort.

In another case of Kalawati v. State of Himachal Pradesh3, the High Court awarded

compensation under Article 21 of the Constitution to the dependents of two persons
who died during surgical operation in a Government Hospital because of the negligence
of hospital staff as they administered Nitrous Oxide in place of Oxygen. Similarly in C.
Chinnathambi v. State of Tamil Nadu4, the Madras High Court allowed compensation of
Rs. 1,50,000 under Article 226 of the Constitution to the dependents of each of the two
children who had died as a result of collapse of a tank in a government school for
violation of Article 21 of the Constitution.

In State of Madhya Pradesh v. Shatibai5 police fired in air to disperse mob. Plaintiffs

who were standing on roof of their houses sustained injuries from bullets fired in the air.
The police officers were aware of their presence. It was held that the police officers had
the duty to take care that no injury caused to persons living in nearby houses. The
police officers were negligent towards plaintiffs and so made State government liable to
pay compensation.

Article 21 also available to foreign nationals.—

Article 21 of the Constitution is not only available to Indian citizens but also to
foreigners who visit India as a tourist or otherwise. In Chairman, Railway Board v.
Chandrima Das6, a woman

______________________________

1. S.S. Ahluwalia v. Union of India, MANU/SC/0176/2001 : AIR 2001 SC 1309.

2. MANU/KE/0013/1996 : AIR 1996 Ker 71.

3. MANU/HP/0002/1989 : AIR 1989 HP 5.

4. MANU/TN/0393/2000 : AIR 2001 Mad 35; See also Yashpal Sharma v. Union of India, Hindustan

Times 27-9-2003, p. 5. In this unreported case, the Police Commissioner of Delhi imposed section 144 Cr

PC in the city against the Bharat bandh call given by the B.J.P. Around 50 lawyers who were against the call

demonstrated in a peaceful manner outside the Parliament House. The Police swooped on them without

warning and resorted to a lathi charge. One advocate, Yashpal Sharma, sustained serious injuries. The

Additional Sessions Judge Mr. G.P. Mittal, without mentioning Art. 21 of the Constitution, awarded

compensation of Rs. 1.5 lakh to victim and rightly observed: "it is difficult to compensate the plaintiff for his

bruised feeling and loss of reputation…whenever he would be taking up a case, he would have a feeling that

he was unable to protect himself…in his work place where he is fighting for the rights and dignity of the

others."

5. MANU/MP/0423/2003 : AIR 2005 MP 66.

6. MANU/SC/0046/2000 : AIR 2000 SC 988.

from Bangladesh was gang-raped by railway employees in Yatri Niwas at Howrah

railway station. Holding the Government liable for the wrong committed by railway
employees, the Supreme Court stated that Right to life contained in Article 21 is
available not only to every citizens of the country, but also to every person, who may
not be a citizen. Even a tourist is entitled to the protection of his life. Fundamental
rights under the constitution of India are in consonance with the Human Rights adopted
by the United Nations General Assembly.

It may be noted that the cases discussed above under writ jurisdiction did not refer to
the case of Kasturi Lal or the doctrine of sovereign immunity. The reason is that Article
32 or 226 are for the protection of Fundamental rights, and the defence of sovereign
immunity is inapplicable and alien to the concept of guarantee of fundamental
rights.1 The case of Kasturi Lal can be distinguished on the ground that Articles 32 or
226 cannot be used for enforcing a liability in tort which is entirely different from a
liability arising from violation of fundamental rights.2 The liability of the State to pay
compensation for violation of fundamental rights is a new liability in public law created
by the Constitution and, therefore, the question of sovereign immunity in such kinds of
cases does not arise. However, this is a welcome step by the Supreme Court that even
in the area of sovereign immunity, the State is made liable to pay compensation for the
violation of fundamental right to life and personal liberty under Article 21 or any other
fundamental right for that matter.

The extra-ordinary writ jurisdiction cannot be exercise when civil rights of parties are
involved and facts are disputed, but such norms would not be attracted in a case of
"strict liability". Further merely on basis of plea of disputed questions of fact, the
petition cannot be dismissed. Each individual case has to be tested on toushstone of
doctrine of "strict liability" on its own facts and after taking into consideration
averments and documentary evidence.3

5. Concluding remarks

It would thus be seen that there are two types of remedies available against the State:
The first is under Article 300 of the Constitution in law of tort under vicarious liability
and the second is under Article 32 or 226 of the Constitution in public law for the
violation of fundamental rights by the State or its officials. It should be noted that
almost all the cases of violation of fundamental rights will fall under both
categories....... Article 300 or Articles 32/226 of the Constitution. But it has been said
by the Supreme Court4 that compensation for violation of fundamental rights can be
allowed only in exceptional cases under writ jurisdiction i.e., under Articles 32/226 of
the Constitution. This means that those cases of violation of fundamental rights which
are `not exceptional' will come under the ambit of law of tort of vicarious liability under
Article 300 of the Constitution where the compensation will not be allowed if the
function involved is of sovereign nature.

It is submitted that the dichotomy between `exceptional' and `non exceptional' is

neither just nor equitable. Moreover, what are `exceptional cases' have not been
defined by the Supreme Court. The demarcation between the `exceptional' and
`nonexceptional' cases might create the same difficulty as has been seen in `sovereign'
and `nonsovereign' functions. It is therefore suggested that the courts should lay down
a just equitable and certain rule so that there should not be any ambiguity in the law.

It is to be noted that even in writ petition, a major area of violation of fundamental

rights which fall under the category of `nonexceptional' cases will

______________________

1. C.E. & R. Centre v. Union of India, MANU/SC/0175/1995 : AIR 1995 SC 922, discussed supra.

2. Nilabati Behra v. State of Orissa, MANU/SC/0307/1993 : AIR 1993 SC 1960, discussed supra.

 3. Joginder Singh v. State of Jammu and Kashmir, AIR 2011 J&K 130.

4. M.C. Mehta v. Union of India, MANU/SC/0291/1986 : AIR 1987 SC 965 (Constitution Bench)

wherein Rudal Shah and Bhim Singh were approved.

be governed under law of tort i.e. Article 300 of the Constitution where the rule of
Kasturi Lal still operates. Thus, in such kind of cases where a person whose
fundamental right (or any other legal right for that matter) is violated by the wrongful
act of State officials, he will not get damages if the wrongful act has been committed by
the State officials in the discharge of sovereign functions. What are sovereign functions
have been vaguely defined. In Peninsular case,1 followed by Kasturi Lal2, Chief Justice
Peacock stated: "Sovereign powers are those which cannot be lawfully exercised except
by a sovereign, or private individual delegated by a sovereign to exercise them."
Because of this vague definition, various tests have been applied by the courts in
several cases. For example, merely acting under statutory power is not considered the
exercise of sovereign power unless the power, as such, is also shown to have been of
sovereign nature. The other test is: whether the act in question could have been
performed by a private person? If the answer is in negative, the act is of sovereign
nature. Another test is: Was it absolutely necessary for the Government to have that
worked performed by its own employees? If the answer is in affirmative, the act is of
sovereign nature and the government would not be liable for the tortious acts of its
servants done in the course of employment. All these tests are not of universal
application to determine `sovereign functions'. They can be applied in particular cases.
No where a comprehensive definition of sovereign functions has been stated by, the
courts except a brief mention of sovereign functions like: the making of laws, the
administration of justice, the maintenance of order, the repression of crime, carrying on
of war, the making of treaties and other consequential functions. The list may be wide
or narrow. This is one problem, but the other real problem arises in those cases where
the tort has been committed within the area of sovereign function. For example,
'carrying on of war' is a sovereign function, but when after the war the sepoys were
ordered to move back in a truck to its permanent location when due to negligence of
military driver four persons sitting on a culvert were severely injured, the Supreme
Court held it as nonsovereign function.3 Similarly, seizure of goods by State officials
under the Essential Commodities Act, 1955 and keeping it in a place where the goods
were destroyed was held it as nonsovereign function by the Supreme Court.4 Even the
sovereign functions within which the immunity of the State survives in an ordinary tort
action under Article 300 of the Constitution are also vague. Thus, the present position in
India is highly unsatisfactory. It is very difficult to distinguish in certain cases whether
the act in questions is of `sovereign' or `nonsovereign' nature. All this put together has
created uncertainty in law, multiplication of litigation, waste of money of common man
and the concerned persons will continue to suffer so long as this bad law continues.
That apart, why the State should not be held liable for the tortious acts of its servant
committed in the exercise of sovereign power is itself unjust and not in tune with the
present day jurisprudential thinking. When the doctrine "King can do no wrong" has
been uprooted from the land of its birth' by the Crown Proceedings Act, 1948 in

________________________

1. Discussed Supra, 1861 Bom HCR App A 15.

2. Discussed Supra, MANU/SC/0086/1964 : AIR 1965 SC 1039.

3. Pushpa Thakur v. Union of India, 1984 ACJ 559 (SC).

4. N. Nagender Rao & Co. v. State of Andhra Pradesh, MANU/SC/0530/1994 : AIR 1994 SC 2663.

See also MANU/SC/0016/1967 : AIR 1967 SC 1885; AIR 1977 SC.

England, there is no reason to continue it here.1 As far back as 1956 the First Law
Commission in its report on the liability of the State in tort recommended legislative
enactment on the lines of Crown Proceedings Act, 1948. In 1965, Chief Justice
Gajendragadkar in Kasturi Lal2 was also unhappy with this rule. He stated: "In dealing a
with the present appeal, we have ourselves been disturbed by the thought that a citizen
whose property was seized by process of law, has to be told when he seeks a remedy in
a court of law on the ground that his property has not been returned to him that he can
make no claim against the State. That, we think, is not a very satisfactory position in
law. The remedy to cure this position, however, lies in the hands of the
legislature."3 After this decision, the Government introduced a bill "Government
(Liability in Tort) Bill, 1967 (on the basis of First Law Commission Report) in the Lok
Sabha but it was withdrawn and reintroduced in 1969 with certain modifications.
However, this bill lapsed.

Since then the Government has not taken any steps to enact the law, and has been a
silent spectator about the problem being faced by the concerned persons. However, in
1994 another attempt has been made by the Supreme Court in the case of N. Nagendra
Rao & Co. v. State of Andhra Pradesh 4, where Justice R.M. Sahai5 very emphatically
stated: "Before parting with this case, the Court shall be failing in its duty if it is not
brought to the attention of the appropriate authority that for more than hundred years,
the law of vicarious liability of the State for negligence of its officers has been swinging
from one direction to other. Result of all this has been uncertainty of law, multiplication
of litigation, waste of money of common man and energy and time of the courts.
Federal Tort claims Act was enacted in America in 1946. Crown Proceedings Act was
enacted in England in 1947. As far back as 1956, the First Law Commission in its report
on the "liability of the State in tort" recommended legislative enactment. Yet
unfortunately the law has not seen the light of the day even though in wake of Kasturi
Lal (Supra), Government (Liability in Tort) Bill, 1967 was introduced but it lapsed. And
the citizens of the independent nation who are governed by its own people and
Constitution and not by the Crown are still faced, ever after well nigh fifty years of
independence, when they approach the Court of law for redress against negligence of
officers of the State in private law, with the question whether the East India Company
would have been liable and, if so, to what extent for tortious acts of its servants
committed in course of employment. Necessity to enact a law in keeping with the
dignity of the country and to remove the uncertainty and dispel the misgivings,
therefore, cannot be doubted."

In the light of the above observation of the Supreme Court and keeping in mind the
problems being faced by the concerned persons and the dignity of the country, it is
submitted that the Government should take immediate steps to enact a law on the lines
as recommended by the Law Commission in its First Report in 1956; otherwise the
concerned persons will continue to suffer because of the bad and uncertain existing law.

______________________

1. See, Chief Justice Sinha's statement in State of Rajasthan v. Vidyawati, discussed

supra, MANU/SC/0025/1962 : AIR 1962 SC 933.

2. Discussed supra, MANU/SC/0298/1964 : AIR 1965 SC 1049.

3. Ibid.

4. Discussed supra, AIR 1994 SC 263.

5. With whom Justice B.L. Hansaria concurred.

© Universal law Publishing Co.

   

CHAPTER 20

DEFAMATION

SYNOPSIS

1. Introduction

2. Definition of Defamation

3. Distinction between libel & slander

4. Indian Law

5. Essentials of defamation
 5.1. False and defamatory statement

5.2. Publication of the statement

5.3. Reference to the plaintiff

6. Defamation of a class of persons

7. Defamation of a deceased person

8. Defences

8.1. Justification

8.2. Fair comment

8.3. Privilege

9. Publication of parliamentary, judicial or other public proceedings

1. Introduction

The right of reputation is acknowledged as an inherent personal right of every person. A

man's reputation is his property and perhaps more valuable than any other
property.1Indeed, if we reflect on the degree of suffering occasioned by loss of character
and compare it with that occasioned by loss of property, the amount of the former
injury far exceeds that of the latter2. Accordingly, whenever there is an injury to the
reputation of a person, he may institute civil proceedings3 for damages against the
wrongdoer. But mere `insult' is not enough for civil action. There should be defamation.
The difference between the two lies in the fact that mere insult is an injury to one's
dignity of self respect; whereas defamation is an injury to the esteem or regard in which
one is held by others. The essence of defamation is `publication' which excites others
against the plaintiff to form adverse opinions or exposes him to hatred,

___________________________

1. Dixon v. Holden, (1869) 7 Eq 488.

2. De Crespigny v. Weslleley, (1829) 5 Bing 932; see also R. Lal & D. Lal Law of Torts, 19th Edn., p. 164.

3. Youssoupoff v. Metropictures, (1934) 50 TLR 581. See also sec. 499, IPC; Prameela Ravindra v. P.L.
Amma, MANU/TN/0369/2000 : AIR 2001 Mad 225.

contempt or ridicule, or to injure him in his trade, business, profession, calling or office,
or to cause him to be shunned or avoided in society1.

2. Definition of Defamation
According to Black's Law Dictionary, "defamation is the act of harming the reputation of
another by making a false statement to a third person."

According to Salmond, "the wrong of defamation consists in the publication of a false

and defamatory statement respecting another person without lawful justification or
excuse."

According to Winfield defamation is the publication of a statement which reflects on a

person's reputation and tends to lower him in the estimation of right thinking members
of society generally or tends to make them shun or avoid that person."

Similarly, some judges have defined2 the tort of defamation while delivering the
judgments in certain cases. In Parmiter v. Coupland, 3 Parke, B defined defamation as "A
publication, without justification or lawful excuse, which is calculated to injure the
reputation of another, by exposing him to hatred, contempt or ridicule may be called
defamation." Even without exciting such strong feelings as " hatred, contempt, or
ridicule, a statement may amount to defamation if it tends to lower a person in the
estimation of right thinking people generally or tends to make them shun or avoid him.
See Winfield and K. Jolowicz on Tort, 11th Edn., p. 274.

__________________________

1. The essence of defamation is the dissention of the good opinion of others and not the outrage or insult to
the dignity or feelings of the person vilified. See, Nemichand v. Khemchand, MANU/RH/0065/1973 :

AIR 1973 Raj 240.

2. See also Section 499 of the Indian Penal Code defines defamation as:

"Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible

representations, makes or publishes any imputation concerning any person intending to harm, or

knowing or having reason to believe that such imputation will harm, the reputation of such person, is

said, except in the cases hereinafter expected, to defame that person.

Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the

imputation would harm the reputation of that person if living, and is intended to be hurtful to the

feelings of his family or other near relatives.

Explanation 2.—It may amount to defamation to make an imputation concerning a company or an

association or collection of persons as such.

Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to

defamation.

Explanation 4.—No imputation is said to harm a person's reputation, unless that imputation directly or

indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or

lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that
 person, or causes it to be believed that the body of that person is in a loathsome state, or in a state

generally considered as disgraceful."

3. (1840) 6 M&W 105 (108).

In Neville v. Fine Arts Ins.,1 it is held that a statement is said to be "defamatory" when
it had a tendency to injure the reputation of the person to whom it refers. Such a
statement is one which exposes him to hatred, ridicule, or contempt or which causes
him to be shunned or avoided, or which has a tendency to injure him in his office,
profession or calling."

3. Distinction between libel & slander

The defamation of a person may be in writing or in some permanent form, or it may be

by spoken words or gesture. The former is called `libel' and the latter is called
`slander'. Examples of libel, as distinguished from slander, are any writing i.e., print,
mark or sign, or a picture, statue, wax-work effigy which are exposed to view. On the
other hand, examples of slander are, oral utterances i.e, speeches, or gesture i.e.,
winking, shaking of the head, or in the manual language of the deaf & dumb who holds
up an empty purse indicating that the plaintiff has robbed the defendant. These
examples show that generally libel is addressed to the eye, slander to the ear.

Apart from the distinction between libel and slander, there are two important
differences in their legal consequences. Firstly, libel is not only a civil wrong, but also a
crime. Slander is always a civil wrong except where spoken words may be punishable as
being treasonable, seditious, blasphemous or the like.2 Secondly, libel is always
actionable per se, i.e., without proof of special damage. But slander is actionable only
on proof of special damage, except in four cases which are as follows: (a) An imputation
that the plaintiff has committed criminal offence punishable corporally and not by fine
only (b) the words imputing that the plaintiff suffers from a contagious disease which
renders him unfit for society, viz., veneral diseases and leprosy, (c) an imputation
against the plaintiff in relation to his office, profession or trade, e.g., to accuse a
barrister or doctor of incapacity or of infamous practices in the discharge of his
professional duties3, (d) words imputing unchastity or adultery to any woman or girl are
actionable per se, e.g., lesbian.4 This last point was not actionable per se under
common law but has been enacted as actionable per se under the Slander of Women
Act, 1891 in England. It may also be pointed out here that the common law of
defamation has been changed in many respect by the Defamations Act, 1952 in
England.

4. Indian Law

The above distinction between libel and slander is important in England and not in India.
In India both libel and slander are criminal offences under section 499 of the Indian
Penal Code. Thus, criminal law in India does not make any such distinction 5 between
libel and slander. However, there has been

_______________________

1. (1897) AC 68 (72).

2. For e.g., Contempt of court, see, Queen v. Holbrook, (1878) 4 QBD 42 (46).

3. Waldey v. Cooke, (1849) 4 Ex 511; Wekley v. Healey, (1849) 7 CB 591; Vaidianatha Sastriar v.

Somesunder Thambiran, (1912) 24 MLJ 8.

4. Kerr v. Kenned, (1942) 1 KB 409.

5. A.D. Narayana Sah v. Kannamma Bai, ILR (1933) 55 Mad 737; Ramdhara v. Phulwatibai, 1969 Jab LJ

582.

controversy whether slander, like libel, should be actionable per se in civil proceedings
in India, or some special damage is required to be proved. The weight of the authorities
is in favour of discarding the distinction between libel and slander. In Paravathi v.
Manner1 it was observed by the court that proof of special damage in the case of oral
defamation, being founded on no reasonable basis, should not be adopted by the courts
of India. In Hirabai Jehangir v. Dinshaw Edulji2, it was held by the Bombay High Court
that in the case of imputation of unchastity to a women by spoken words, the wrong
was actionable without proof of special damage. In Ranidhara v. Phulwatibai3, the High
court of Madhya Pradesh also expressed the view that both libel and slander are
actionable per se i.e., without proof of special damage, in civil courts. In H.C. D'Silva v.
E.M. Potenger4, the Calcutta High Court observed that the English rule regarding proof
of special damage in actions for slander does not apply in India.5

5. Essentials of defamation

(i) The statement must be false and defamatory.

(ii) It must be published.

(iii) It must refer to the plaintiff.

5.1. False and defamatory statement

The statement must not only be false but also defamatory. The defamatory statement
must be such which tends to lower a person in the estimation of right thinking members
of society generally6, or which tends to make them shun or avoid that person. 7 Thus,
any statement may be defamatory which exposes the plaintiff to hatred, ridicule,
contempt, or tends to injure him in his profession or trade or causes him to be shunned
or avoided by the right thinking members of society generally. Who are then right
thinking members? Winfied's answer is the reasonable man. He is neither unusually
suspicious nor unusually naive and he does not always interpret the meaning of words
as would a lawyer, for he "is not inhibited by a knowledge of the rules of
construction.8 Thus, he should be a fairminded person and not that of a special class of
persons whose values are not shared or approved by the fairminded members of the
society generally.9 The standard, thus, to be applied is to lower a person in the
estimation of fairmined person of the society generally. For example, in Youssoupoff v.
MetroGoldwyn-Mayer Pictures Ltd.10, the plaintiff, a Russian princes, was falsely
imputed by a cinematograph film that she had been raped or seduced by the notorious
monk, Rasputin. The court held that this tended "to make the plaintiff be shunned and
avoided" in the estimation of right thinking persons of the

________________________________

1. ILR (1885) 8 Mad 175.

2. ILR 1927 Bom 167.

3. 1969 MPLJ 383.

4. ILR (1946) 1 Cal 157.

5. For a contrary view, see, Bhooni Maney Dossee v. Natobar Biswas, ILR (1901) 28 Cal 452, where it was

observed by the court that the English law as it then was, was made applicable into India by the Charter of

1726. Harrington J. felt that there was no need to deviate from that rule of English law which stood there

prior to 1891 and was imported into India.

6. Sim v. Stretch, (1936) 2 All ER 1237.

7. Youssoupoff v. MetroGoldwynMayer Picture Ltd., (1934) 50 ILR 581.

8. Winfield on Tort, 10th Edn., p. 241.

9. Ramdhara v. Phulwatibai, 1969 Jab LJ 582.

10. (1934) 50 ILR 581.

society generally. Similarly, in Ramdhara v. Phulwatibai1, the plaintiff, a widow of 45

yrs., was falsely amputated by the defendant that she is a keep of the maternal uncle of
plaintiff's daughterinlaw. The court held that this imputation of chastity was a
defamation.

In Mushtaq Ahmed Mir v. Akash Amin Bhat2, the Jammu and Kashmir High Court held
that the respect and reputation of a person is not dependant upon how much wealth he
has accumulated. A human being is entitled to lead a respectful life in the civilized
society. The human rights of an individual depronounce that every individual shall be
entitled to have respect in the society. Pronounced and professed values of the society
do not state that only that person who has amassed worldly possession is entitled to
respect and a poor man has no respect. Thus, in a suit for defamation it is not
necessary that the plaintiff must have sufficient wealth.

In another case of D.P. Chaudhary v. Manju Lata 3, a local daily published a statement
that Manju Lata, a girl of 17 yrs., and a student of B.A., had runaway with a boy named
Kamlesh on the pretext of attending night classes in her college. The court found the
statement false and defamatory and held the defendants liable for damages amounting
to Rs. 10,000.

In S.N.M. Abidi v. Profulla Kumar Mohanta4, a news article published in the Illustrated
Weekly alleged the misuse of man and muscle power by former Chief Minister, Profulla
Kumar Mohanta. The Court found that the article was false, defamatory and harmed the
plaintiff's reputation and awarded damages amounting to Rs. 5,00,000.

A person can also be restrained from making any false and defamatory statement
against another. In Prameela Ravindran v. P. Lakshmi Kuttty Amma5, the defendant,
who disputed the marriage, had been sending letters to various persons regarding the
marital status of the plaintiff. The plaintiff filed an application requisitioning for an order
to restrain the defendant from making any defamatory statement against her. The
evidence produced by the plaintiff was in her favour. The Court found such letters were
defamatory and restrained the defendant from making such statements or writing such
letters to various persons.

But where the statement is false and not defamatory, it would not amount to
defamation. In South Indian Co. v. Ramakrishna 6, a railway guard went to the
compartment for checking the tickets and at the time of checking he said to plaintiff in
front of others: "I suspect you are travelling with a wrong or false ticket." This
statement was false as the plaintiff's ticket was in order. Plaintiff sued the railway
company for defamation, but the court held that the words spoken by the railway guard
were bona fide and did not amount to defamation.

Innuendo.—Sometimes a statement does not convey any defamatory imputation in its

natural meaning. But the statement which is not defamatory in the ordinary sense may,
nevertheless, convey a defamatory meaning owing to

____________________

1. 1969 Jab LJ 582.

2. AIR 2010 J&K 11.

3. MANU/RH/0038/1997 : AIR 1997 Raj 170.

 4. MANU/GH/0021/2002 : AIR 2002 Gau 75 (DB).

5. MANU/TN/0369/2000 : AIR 2001 Mad 225.

6. 1890 ILR 13 Mad 34.

the particular circumstances. To set forth these particular circumstances by the plaintiff,
is called innuendo. For example, X published a statement that "Mrs. Y had given birth to
a child". Here the statement in its natural meaning is not defamatory. But it may
become defamatory in certain circumstances i.e., when Mrs. Y pleads that she was
married only two months ago. To set fourth these particular or additional circumstances
in her pleadings is called innuendo. When the innuendo is proved by the plaintiff, the
words which are not defamatory in the ordinary sense may become defamatory and the
defendant will be liable. A case worth mentioning on this point is that of Cassidy v. Daily
Mirror.1

The defendants published in a newspaper a photograph of Mr. M and Miss C, together

with the words: `Mr. M, the race horse owner and Miss C, whose engagement has been
announced." This statement was false as they were already married. In an action by the
plaintiff, the wife of Mr. M, it was held that the court that the publication was capable of
conveying a meaning defamatory of the plaintiff, viz., that she was not the lawful wife
of Mr. M and was living with him in immoral cohabitation. The defendants, were,
therefore, held liable.

Another worth mentioning case on this point is that of Tolley v. Fry & Sons Ltd. 2 The
plaintiff, a famous amateur golfer, was caricatured by the defendants, without his
knowledge or consent, in an advertisement of their chocolate which depicted him with a
packet of it protruding from his pocket. A caddy was represented with him, who also
had a packet of chocolate the excellence of which he likened, in some doggerel verse, to
the excellence of the plaintiff's drive. The plaintiff alleged in his innuendo that the
defendants thereby meant that the plaintiff had agreed to let his portrait be exhibited
for advertisement that he had done this for gain, and that he had thus prostituted his
reputation as an amateur golfer. It was held by the House of Lords that "the caricature,
as explained by the evidence, was capable of being thus construed; for golfers testified
that any amateur golfer who assented to such advertisement might be called upon to
resign his membership of any reputable club, and it also appeared from correspondence
between the defendants and their advertising agents that they were quite alive to the
possible effect of the advertisement on the plaintiff's amateur status." 3 Thus, the
defendants, were held liable.

Knowledge or intention of defendant and its impact.—In Cassidy v. Daily Mirror

Newspaper Ltd.4, the Court of Appeal held that the innuendo was established and that
the publication conveyed to reasonable person was an aspersion on the plaintiff's moral
character. The court also observed that "it is immaterial whether the defendant knew,
or did not know, of external facts which turn a presumptively innocent statement into a
defamatory one. He must take the risk of that, and he is liable either way, provided the
defamatory meaning which is alleged could reasonably have been put upon the words."

____________________________

1. (1929) 2 KB 331.

2. 1931 AC 333.

3. Winfield on Tort, 10th Edn., p. 254.

4. (1929) 2 KB 331.

Similarly, in Morrison v. Ritchie & Co.1, the defendants in good faith published a false
statement that the plaintiff had given birth to twins. In fact the plaintiff was married
only two months back. The court held the defendants liable although they were ignorant
of this fact. In another important case of E. Hulton & Co. v. A. Jones 2 the defendants
published a humorous and artificial article in which one Artemus Jones was accused of
living with a mistress in France. The House of Lords held that even in the absence of
any intention to defame the respondent, the appellants would be liable.

But in India, whether intention to defame is necessary or not, there are divergent views
of the various High Courts. In T.V. Ramasubba Iyer v. Ahmad Mohideen 3, the Madras
High Court did not follow the English cases discussed above and held that there was no
liability for the statements published innocently. The fact were that the defendants
published in their newspaper a news item stating that a person from Tirunelveli, who
was exporting scented Agarbathis to Ceylon, had smuggled opium into Ceylon in the
form of Agarbathis. It was also stated that be had been arrested in Ceylon and brought
to Madras. In an action by the plaintiff, who carried on the business of manufacturing
scented agarbathis and exporting them to Ceylon, the defendants pleaded ignorance
about the plaintiff and that they had no intention to defame him.

The Madras High Court discussed the earlier English cases, particularly, E. Hulton Co. v.
A. Jones.4 and held that the law laid down in Hulton's case is against justice, equity and
good conscience and, therefore, not applicable in India. In holding so, the court referred
to section 4 of the Defamation Act, 1952 and stated that the common law had been
altered in England whereby an innocent person, who published the defamatory
statement, can avoid liability. There is therefore no reason to follow the law laid down in
the case of Hulton & Co. v. Artemus Jones. The Court, therefore, held the defendant not
liable for unintentional defamatory statement. This case was followed by the Madhya
Pradesh High Court in the case of Dainik Bhaskar v. Madhusudan Bhaskar5 where
intention to defame a person was considered as a necessary ingredient.

But Rajasthan High Court in the case of D.P. Chowdhery v. Manjulata 6, held that the
intention to defame is not relevant. In that case the plaintiffrespondent, a girl of 17
years and a student of B.A., belonged to a distinguished family of Jodhpur. A local daily,
`Dainik Navjyoti', published a news item that last night Manjulata had run away with a
boy named Kamlesh on the pretext of attending night classes in her college. It was
found by the court that she was ridiculed by the persons who knew her and that the
news item was untrue and was

____________________________

1. (1902) 4 F. 654. (Scotland).

2. 1910 AC 20.

3. MANU/TN/0214/1972 : AIR 1972 Mad 398.

4. Discussed supra and also infra in detail, 1940 AC 20.

5. MANU/MP/0031/1991 : AIR 1991 MP 162 (168).

6. MANU/RH/0038/1997 : AIR 1997 Raj 170.

published negligently with utter irresponsibility. Holding the defendants liable for
damages amounting to Rs. 10,000, the Court stated that the intention or motive with
which the words were employed is, as a rule, immaterial. If the defendant has in fact
injured the plaintiff's reputation he is liable, although he did not intend to do so, and
had no such purpose in his mind when he wrote or spoke the words. Every man must be
presumed to know and to intend the natural and ordinary consequences of his acts. The
words are actionable if false and defamatory, although published accidentally or
inadvertently.

Thus, as we have seen, Madras and Madhya Pradesh High Courts are of the opinion that
intention to defame is a very vital and material factor. The second Press Commission of
India, 1982 also recommended the same view. It is submitted that this principle is in
tune with modern thinking1 and is also in consonance with the principle of2 equity,
justice and good conscience. It is hoped that our Supreme Court would also follow this
approach.

5.2. Publication of the statement

The second ingredient in constituting the tort of defamation is that the statement must
be published. If the defamatory statement has not been published, the defendant will
not be liable. The question is: what is publication? The words "published" or
"publication" used here is not in the popular sense of giving publicity. It means the
communication of defamatory matter to some person or persons other than the person
defamed. For example, A writes to B and tells him falsely that C is a cheat; obviously
this is a publication in the legal sense. However, if A write to C (in a closed envelope)
and tells him that he (C) is a cheat, this is not a publication because he did not tell it to
any other person. Matter contained in telegram and postcards amounts to publication.
In such a case law presumes that such documents, openly transmitted, will probably be
read by others (e.g., post office officials) and therefore the sending of them will amount
to a publication.3 But this presumption does not apply in a case where the envelope is
unsealed.4 Where, however, a person sends a closed envelope to another person,
knowingly that it would be opened by his clerk and it happened so, it would amount to
publication.5 If the clerk opens it in breach of his duty then it is not a
publication.6 Similarly, it is `publication' by the sender of a letter to his Secretary if he
dictates it to her for transmission to the intended receipient.7

___________________________

1. See, Defamation Act, 1952.

2. See, Sanjay K. Chadha Tortious Liability for Defamation in India—A Critical Analysis, an unpublished

Dissertation—2001, Law Library, University of Delhi, where he very beautifully analysed all the cases and

reached to a conclusion that "the intention to defame is material element and the courts are required to

take into consideration this aspect of law. It is only in the extraordinary circumstances that the court should

give less importance to the other aspects."

3. Williamson v. Freer, 1874 LR 9 CP 393.

4. Huth v. Huth, (1915) 3 KB 32.

5. Delacroix v. Thevenot, (1817) 2 Stark 63.

6. Ibid.

7. Osborn v. Thomas Boulter & Son, (1930) 2 KB 226; Riddick v. Themes Board Mills, (1977) 3 All ER 677.

But what would be the position if the matter is in a language which the addressee does
not know or he is too blind to read it. This question was considered by the Patna High
Court in the case Mahendra Ram v. Harnandan Prasad.1

The defendant wrote a defamatory letter in Urdu to the plaintiff. The same was read
over to him by a third person as the plaintiff did not know Urdu. It was held that unless
the defendant knew at the time of writing letter that the plaintiff did not know Urdu
language and it would necessitate reading of the letter by a third person, he would not
be liable.

In Arumuga Mudaliar v. Annamalai Mudaliar2, where two persons jointly wrote a letter
containing defamatory matter concerning the plaintiff and sent the same by registered
post to the plaintiff, it was held by the Madras High Court that there was no publication
by one tortfeasor to the other as there could be no publication between joint
tortfeasors. Further, it cannot be said to be publication when the registered letter
addressed to the plaintiff gets into the hands of an unexpected third person and he
reads it out in the presence of various other persons.

Husband & Wife.—Communication of defamatory matter by a husband to his wife, or

vice versa, is not a publication because they are considered one person in the eye of
law. This rule is based on the ground that, if permitted, it "might lead to disastrous
results to social life."3 But communication by a third party to one spouse of matter
defamatory of the other spouse is publication on the ground that although husband and
wife are one person, they are not so for the purpose of having the honour and feelings
of the husband assailed and injured by acts done or communication made to the wife.4"
A relevant Indian case on this point may be cited.

In T.J. Ponnen v. M.C. Verghese,5 the facts were that the husband wrote a number of
letters to his wife containing defamatory matter about her father i.e., wife's father. The
wife passed on those letters to her father, Mr. M.C. Verghese. Mr. Verghese then
launched a prosecution against her husband i.e., son-in-law. It was held by the court
that letters meant for the wife could not be proved by her or anybody else to the
prejudice of her husband because such communications are precluded by the law to be
disclosed under section 122 of the Evidence Act. But, on appeal, the Supreme Court
reversed this decision on the ground that in view of section 122, Indian Evidence Act,
the complainant cannot seek to support his case upon the evidence of the wife of the
accused, but if the communications between the husband and the wife have fallen to his
hands the same can be proved in any other way. Justice Shah said: "If the complainant
seeks to support his case only upon the evidence of the wife accused, he may be met
with the bar of section 122 of the Indian Evidence Act. Whether he will be

________________________

1. MANU/BH/0143/1958 : AIR 1958 Pat 445.

2. (1966) 2 MLJ 223.

3. Wenhak v. Morgan, (1888) 20 QBD 635 (639).

4. Wenman v. Ash, (1953) 13 CB 844; Theaker v. Richardson, (1962) 1 WLR 157.

5. MANU/SC/0054/1968 : AIR 1970 SC 1876.

able to prove the letters in any other manner is a matter which must be left to be
determined at the trial and cannot be made the subject-matter of an enquiry at this
stage."

Repetition of defamatory matter.—Each time the originator of a defamatory

statement repeats it, he publishes it anew. For each publication, therefore, a fresh
cause of action arises.1 Not only the author of the defamatory statement is liable but
also those who repeat it. Tale bearers are as bad as tale makers. Thus, editor, printer or
publisher or any other person who repeats the defamatory statement would also be
liable in the same way. However, the law adopts a lenient view for booksellers,
newspapervendors or librarians. In Emmens v. Pottle, the news-vendors (defendants)
sold copies of a publication containing libellous matter concerning the plaintiff. They
were not held liable because they neither knew nor were negligent in not knowing the
matter, and hence there was no publication on their part.

5.3. Reference to the plaintiff

The third ingredient of defamation is that the statement must refer to the plaintiff. The
plaintiff must prove that the statement of which he complains might reasonably be
understood by people that it refers to the plaintiff, and that they were in fact
understood to do so.2 It is, however, not necessary for the plaintiff to prove that the
defendant intended it to refer to the plaintiff. Nor would it make any defence if the
defendant proves that he had no intention to refer it to the plaintiff. An important case
on this point is that of E. Hulton & Co. v. Artemus Jone.3

The appellants were newspaper proprietors of "Sunday Cronicale". They published in

their paper a humorous article of a motor festival at Dieppe, in which, one Artemus
Jones, described as a Churchwarden, was accused of living with a mistress of ill-repute
in France in the following words: "Whist! There is Artemus Jones with a woman who is
not his wife, who must be, you know… the other thing! Whispers a fair neigbbour of
mine... Here, in the atmosphere of Dieppe. ..(Jones) is the life and soul of a gay little
band that haunts the Casino." This character was imaginary and was just drawn to
exemplify the naughtiness of respectable Englishmen on holiday abroad. The writer of
the article and the owners of the newspapers were ignorant of the existence of any
person who bore that name. Unfortunately, the name so chosen was that of a real
person, an English barrister (who was not a churchwarden), and those who knew him
supposed the article to refer to him. In an action by the barrister, Artemus Jones, it was
held by the House of Lords that a person charged with defamation

________________________

1. Duke of Brunswick v. Harmer, (1849) 14 QB 185.

2. Shaw v. London Express Newspaper Co., (1925) 41 TLR 475; Knupffer v. London Express Newspaper

Ltd., 1944 AC 166; Braddock v. Bevnins, (1948) 1 KB 580: (1948) 1 All ER 450. If the partnership firm has

been defamed, the firm cannot bring an action as it is not a person, but it's partners can sue, P.K. Oswal

Hosiery Mill v. Tilak Chand, AIR 1969 Punj 150; If a spiritual head of a community is defamed, an individual

of that community does not have a right of action—see Dhirendra Nath Sen v. Rajat Kanti
Bhadra, MANU/WB/0040/1970 : AIR 1970 Cal 216.

3. 1910 AC 20.
"cannot defend himself by showing that he intended in his own breast not to defame the
plaintiff. He has nonetheless imputed something disgraceful, and has nonetheless
injured the plaintiff. A man may publish a libel in good faith believing it to be true, and
it may be found by the jury that he acted in good faith believing it to be true, but that in
fact the statement was false. Under those circumstances he has no defence to the
action, however his excellent indentation was." The defendants were held liable.

Thus, the state of defendant's knowledge or the amount of circumspection he has used
is not relevant in determining his liability. If his statement is capable of referring to the
plaintiff, and if it was understood to refer to him, he may be liable though he had no
intention of defaming him. Indeed, in an extreme case the defendant was held liable
when he made a statement which was true about X, but was taken to refer to Z of
whom he never even heard of.1 The aforesaid judgemade law created a lot of hardship
to the writers, publishers, printers etc. Accordingly, in England the Defamation Act was
passed in 1952 to remove the hardship which had been created for innocent persons.2

In India, however, the law laid down in Hulton3 case that liability for libel does not
depend on the intention of the defamer, but on the fact of defamation, was not followed
by the Madras High Court in T.V. Ramasubha Iyer v. Ahmed Mohideen 4 where the
defendants pleaded ignorance about the plaintiff and the argument that they had no
intention to defame him was rejected by the Court on the ground that the law laid down
in Hulton case is against the principle of equity, justice and good conscience. The court
held that the intention to defame a person is a necessary ingredient in the tort of
defamation. This was also followed by the Madhya Pradesh High Court in the case of
Dainik Bhaskar v. Madhusudan Bhaskar.5 But in D.P. Choudhary v. Manjulata 6, the
Rajasthan High Court followed E. Hulton's case and held that the intention or motive
with which the words employed is, as a rule, immaterial. In the absence of any
judgment of the Supreme Court on this point, it is submitted that the law laid down by
the Madhya Pradesh and Madras High Courts is in consonance with the principle of
equity, justice and good conscience and is also in tune with the modern jurisprudential
thinking7. It is hoped that the Supreme Court will also follow this approach.

6. Defamation of a class of persons

Where, however, a statement is made about a class or group of people

______________________

1. Newstead v. London Express Newspaper Ltd., (1940) 1 KB 377.

2. Section 4 of the Defamation Act, 1952 mitigated the hardship created by Hulton's case by providing that

a publisher of an innocent and unintentional defamatory statement can avoid liability by offering of amend.

3. Discussed supra, 1910 AC 20.

 4. Discussed supra, MANU/TN/0214/1972 : AIR 1972 Mad 398.

5. Discussed supra, MANU/MP/0031/1991 : AIR 1991 MP 162 (168).

6. Discussed supra, MANU/RH/0038/1997 : AIR 1997 Raj 170.

7. See Section 4 of the Defamation Act, 1952 whereby the law laid down in E. Hulton's case has been

altered and has mitigated the hardship created by it.

sufficiently large to leave the reputation of each unsullied, one of them cannot come
forward and single himself out as the victim.1 Thus, if a man wrote that "all doctors
were cheats, no particular doctor could sue him unless there is something to point to
the particular individual—Eastwood v. Holmes.2

The above statement in Eastwood's case is important, for if the class or group is
sufficiently small for each individual to be injured by the statement, the defendant may
be liable. Thus a defamatory statement e.g., "The doctors in Roopnagar are frauds
(Roopnagar is a small Mohalla with three doctors), or where there is something in the
statement to point to one or a small number of a group rather than the rest then those
injured may file a suit for defamation and the defendant will be liable. 3 An important
case on this point is of Knupffer v. London Express Newspaper Ltd.4

The facts were that the plaintiff was English representative of the Young Russia Party, a
group having 24 members in England and 2000 members in all. The defendants
published a defamatory statement about the Party as a whole. The friends of the
plaintiff thought that it refers to the plaintiff. It was held by the court that an article
which referred to a group of such a big size (mostly resident abroad) was not
reasonably capable of having reference to the appellant, since there was nothing to
point to him in particular. Similarly, in India in D. N. Sen v. R.K. Bhadra,5 it has been
held that an editorial in a newspaper containing defamatory statement of a spiritual
head of a community, does not give a right of action to an individual of that community.
But where the statement generally refers to a class and that it can reasonably be
considered referring to a particular person, his action in that case will succeed. It was so
held in the case of Fanu v. Malcolmson, 6 where the defendants published an article, in
which he stated that cruelty was being practised upon employees in some of the Irish
factories. From the article as a whole an inference was drawn that plaintiff's Waterford
Factory was aimed at. The defendants were held liable.

7. Defamation of a deceased person

It is not a tort to defame a dead person. The Andhra Pradesh High Court in the matter
of All India Anna Dravida Munnetra Kazhagam, Madras v. K. Govindan Kutty, held that
to defame a dead person is not a tort and the maxim `actio personalis moritur cum
persona' applies in such kind of cases. Moreover, the legal proposition is implicit in the
requirement that the plaintiff to succeed in a suit for defamation must prove that the
offending words referred to him. Further such actions do not survive for the benefit of
the plaintiff's estate on his death. But if the defamatory statement is that deceased `W'
was a prostitute, then her daughter may sue in defamation on the ground that the
statement affects her

____________________________

1. Booth v. Briscor, (1877) 2 QBD 496. Kunpffer's case, 1944 AC 116.

2. (1858) 1 F&F 349.

3. Morgen v. Odhams Press Ltd., (1971) 2 All ER 1156.

4. 1944 AC 116.

5. MANU/WB/0040/1970 : AIR 1970 Cal 216.

6. 1848 HL Cas 637.

reputation but not on the ground that it defames her deceased mother. However, in
criminal law, a person defaming a dead person may be criminally prosecuted if the
imputation would have harmed the reputation of that person if living, and is intended to
be harmful to the feelings of his family or other near relatives.1

8. Defences

There are three specialised defences to an action for defamation:

1. Justification

2. Fair comment

3. Privilege

8.1. Justification

It is a complete defence to an action for defamation that the words complained of are
true. For, "the law will not permit a man to recover damages in respect of an injury to a
character which he does not, or ought not to possess." However, in criminal law mere
truth is not a defence.2 It is necessary to prove that the publication of the defamatory
statement was in public interest or for public benefit.3 In India under exception 1 to
section 499 of the I.P.C., or in England under the Libel Act, 1943, the accused is
required to prove not only that the statement complained of was true, but also that it
was made in public interest or for public benefit.

Thus, the defence will not be available to the defendant if he is unable to prove the
truth of the facts. It was so held in the case of Radhey Shyam Tiwari v. Eknath4, where
the defendant published in his newspaper some articles against the plaintiff, a Block
Development Officer, alleging that the plaintiff had issued false certificates, accepted
bribe and adopted corrupt means in serval matters. In an action for defamation by the
plaintiff, the defendant could not prove that the facts published by him were true. The
court held the defendant liable.

In Vimal Kumar v. Deshdiwaker5, the plaintiff alleged that the defendant published
circular wherein it was stated that the plaintiff, a Minister, was arrested for causing
nuisance in management of school and he also took share from salary of teachers. The
allegations was found to be correct by evidence of students and teachers. Thus the act
of the defendants was held to be non-libelous.

But what would be in those cases where the defamatory statement contains several
charges and some of them are found true and some not. In Alexander v. N.E. Rly.
Co.,6 it was held by the court that if the statement is proved to be substantially true, it
does not matter if it is incorrect on some immaterial detail. In this case plaintiff was
stated to have been convicted and sentenced to three weeks' imprisonment, while in
fact it was only for two weeks. It was held by the

________________________

1. (1996) 2 ALD 139 (158) (AP).

2. Section 499, Indian Penal Code.

3. Ashok Kumar v. Rakha K. Pandey, MANU/WB/0054/1967 : AIR 1967 Cal 178.

4. MANU/MH/0189/1985 : AIR 1985 Bom 285.

5. MANU/MP/0441/2004 : AIR 2005 MP 37.

6. (1855) 6 B&S 340.

court that there was sufficient justification. However, the Defamation Act, 1952 of
England provides that "in an action for libel or slander in respect of words containing
two or more distinct charges against the plaintiff, a defence of justification shall fail by
reason only that the truth of every charge is not proved if the words proved to be true
do not materially injure the plaintiff's reputation having regard to the truth of the
remaining charges."

Keeping in mind the above provision and the case of Alexander v. North Eastern Rly.
Co.,1 it can be safely said that the same rule should be followed in India.

8.2. Fair comment

The second defence to an action for defamation is that of fair and bona fide comment.
Following are the essential requisites of fair Comment.

(a) It must be a comment and not a statement of facts.

(b) The comment must be `fair' and bona fide.

(c) The matter commented on must be of public interest.

(a) Comment.—Comment means an expression of opinion based on certain

facts. The facts must be true. If the facts are not true, the comment thereon will
not come within the ambit of good defence. Since the comment is always based
on certain facts, it is necessary that the facts should be mentioned before
making a comment. The distinction between allegation of facts and comment
must be borne in mind in determining whether the plea of fair comment can be
sustained. For example, `A does not take bath, wears dirty clothes, and does
not clean his teeth in the morning. He is, therefore, a dirty man.' Here the latter
words are a comment based on the former facts.

(b) Comment must be fair.—In order to bring the comment within the ambit of
good defence, it is necessary that the comment must be fair. The word `fair'
embraces the meaning of `honest' and also of relevant comment. As in the
above example, "a dirty man" is a fair comment.2 If suppose the comment would
have been `a dishonest man' instead of `a dirty man' on the basis of facts
already mentioned, then it is not a relevant comment. In such a case it would
not be considered as a `fair' comment and the defendant may be held liable.
The defence of fair comment has been very beautifully explained in an Indian
case of Tushar Kanti Ghosh v. Bina Bowmic 3,' in the following words: "(a) the
comment must be fair in the sense that it must be based on the facts truly
stated and the inference drawn must be honest and reasonably warranted by
such facts; (b) having stated the facts truly, some observations by way of
comment may be added provided they consist an inference which might
legitimately be drawn from the facts stated; (c) the exaggerations would be
excused only if it is merely an excess of severity short of violent inventive and
cannot take the form of an addition of untrue facts." Thus, in the above
example, if the comment would have been `extremely dirty man, it would still
fall within the ambit of "fair" comment

__________________

1. (1855) 6 B&S 340.

2. See e.g., Cohen v. Daily Telegraph Ltd., (1968) 1 WLR 916.

3. 1953 CWN 378.

 although it is in excess of severity.

In Odger v. Mortimer,1 the plaintiff had organised public agitations against a Bill

introduced in English Parliament. The defendants' newspaper described him as
"half body and half humbug, a demagogue of the lowest type, a political cheap
Jack who would be a political sharper if he had brains enough". The court held it
a fair comment. But where the comment is distorted due to malice, it ceases to
be fair. Gregory v. Duke of Brunswick, 2 is an illustration on this point. When the
plaintiff, an actor, came on the stage at a theatre, the defendants actuated by
malice hooted him and thereby caused him to lose his engagement. It was held
by the court that hooting after conspiracy was not a fair comment on the
plaintiff's performance.

(c) Public Interest.—Public Interest is the third important requisite of fair

comment. But what is public interest has not been defined anywhere. 3 At the
most, we can say that public interest covers matters in which the public is
legitimately interested as well as matters in which it is legitimately
concerned.4 It is for the judge to decide whether the matter is of public interest.
However, matters of public interest include affairs of State, public acts of
ministers and other officials of State, the administration of justice, public
institutions, local authorities, theatres, concerts and other public entertainments
etc. Thus, it would be a good defence if the matter commented on is of public
interest.

8.3. Privilege

The third and the last defence to an action for defamation is that of privilege. The law
recognises that, in addition to the defence of fair comment, there are other occasions on
which freedom of communication without fear of an action for defamation is more
important than the protection of an individual's reputation. Such occasions are said to
be privileged. The privilege may be either (a) absolute, or (b) qualified.

(a) Absolute privilege.—"Absolute privilege covers cases in which complete

freedom of communication is regarded as of such paramount importance that
actions for defamation cannot be entertained at all: a person defamed on an
occasion of absolute privilege has no legal redress however outrageous the
untrue statement which has been made about him and however malicious the
motive of the maker of it.5 Absolute privilege includes the following cases:

(i) Parliamentary proceedings.—Any thing said in the Parliament or State

Legislature is absolutely privileged and no action would lie against any
member of the Legislature even if the statement is highly defamatory and
malicious. Article 105 (2) of the Constitution of India provides that no
member of Parliament shall be liable to any proceedings in any court in
 respect of anything said by him in Parliament or any committee

_________________________

1. (1873) 28 LT 472.

2. (1843) 6 M&G 205; Lyon v. Daily Telegraph Ltd., 1943 KB 746.

3. Only examples have been given, see e.g. Clerk & Lindsell Torts, 13th Edn., pp. 1009-1011.

4. London Artists Ltd. v. Littler, (1969) 2 QB 391, per Lord Denning M.R.

5. Winfield on Tort, 10th Edn., 277.

thereof. It has also been provided in clause 2 of Article 105 that no

person shall be so liable in respect the publication by or under the
authority of either House of Parliament of any report, paper, votes or
proceedings. Article 194 (2) provides similar privileges to the State
legislatures.

(ii) Judicial proceeding.—Anything said or written in a judicial proceeding

is absolutely privileged even if it is false and malicious. It also does not
matter who makes it—the judge1, the jury, the parties, the witnesses or
the advocates. Tribunals possessing similar attributes have also been
extended this privilege. Where, however, the words spoken by the
counsel, witness, parties, or jury are entirely irrelevant to the subject-
matter of judicial proceedings, the defence of privilege is not available to
him. Thus, in Jiwan Mal v. Lachhman Dass2, the defendant, a witness, in
a case remarked that so long as Jiwan Mal stands in the way,
compromise cannot be effected. "He had looted the whole of Dinanagar
and gets false case set up." The High court found the remark of the
defendant wholly irrelevant to the matter under enquiry and uncalled for
because Jiwan Mal had nothing to do with the suit. The court, therefore,
rejected the defence of privilege and held the defendant liable.3 Similarly,
in V. Narayana v. E. Subhanna, the defendant filed a false complaint to
the police imputing an offence of robbery against the plaintiff. It was held
by the court that the statement made in a complaint to the police was
absolutely privileged. The plaintiff's action, therefore, failed.4

(iii) Communication by public officers.—Communications relating to

affairs of state made by one officer of the state to another in the course
of official duty is also absolutely privileged on the ground of public
policy.5

(iv) Military & Naval proceedings.—All acts done in the honest exercise of
 military or naval authority, reports made in the course of official (military
or naval) duty and statements, whether false or malicious, make before a
military or naval court-martial are also absolutely privileged.

(v) Communication between solicitor and client.—Any professional

communication between solicitor and client is privileged, but it is not
certain whether the privilege is absolute or qualified. In More v.
Weaver6 the Court of Appeal held that it was absolute, but in Minter v.
Priest7, the House of Lords found it unnecessary to decide the question
and left

_________________________

1. Judicial Officers' Protection Act, 1850, see supra under the chapter on Capacity to be sued etc.

2. AIR 1929 Lah 486.

3. See also, Rajinder Kishore v. Durga Sahi, MANU/UP/0147/1967 : AIR 1967 All 476.

4. MANU/KA/0100/1975 : AIR 1975 Kant 162; See also T.G. Nair v. M.

Sankunni, MANU/KE/0064/1971 : AIR 1971 Ker 280.

5. See also, Bapalal v. Krishnaswamy, AIR 1941 Mad 25; Vattappa Kore v. Muthu Karuppan, AIR 1941 Mad

538.

6. See, Winfield on Tort, 10th Edn., p. 279.

7. 1930 AC 558.

it open. According to Winfield, "on principle no strong reason seems to

have been advanced for regarding the privilege as absolute. It ought to
be only in the most exceptional cases that, in the interest of the public,
privilege should be ranked as absolute, and surely a solicitor and his
client are sufficiently protected if they are conceded qualified privilege for
their transactions with each other."1 However, whether it is treated as
absolute or qualified, the restrictions on it are that the relationship of
solicitor and client must be proved2 and that the communication must be
a professional one.3

(b) Qualified Privilege.—Qualified privilege protects the maker of an untrue

defamatory statement provided the maker of the statement acted honestly and
without malice. If the plaintiff can prove `malice', the defendant will not be
protected by qualified privilege.

The defence of qualified privilege can be available to the defendant if he is able

 to prove the following two points:

(i) That the statement was made in the discharge of duty (social, legal or
moral) or in protection of common interest; or it is a report of
parliamentary, judicial or any other public proceedings; and    

(ii) the statement was made without malice.

Statement in discharge of duty or in protection of common interest.—In dayto-

day life, manyatimes circumstances may be such as to cast on the defendant the duty
of making the communication to a third party. This duty may be legal, social or even
moral. Communications made pursuant to a duty owed to society may relate to the
character of servants, confidential and private matters etc. For example, in Winstanley
v. Bampton4, a letter was written by the creditor of a junior officer to his superior officer
to secure payment of a debt. It was held that it was a case of qualified privilege.
Similarly, in Boxsius v. Golbert,5 an Advocate under the instructions from his client
dictated to his typist, a letter addressed to B, containing defamatory statements about
B. The letter was press copied by an other clerk. In an action by B against the Advocate
for defamation, the court held that the privilege protecting a business communication
made on a privileged occasion covers "all incidents of its transmission and treatment
which are in accordance with the reasonable and usual course of business." Thus, the
publication to his clerks by the solicitor was covered by qualified privilege and as such
Advocate was not held liable.

Thus, a qualified privilege is that occasion where the person who makes a
communication has an interest or a duty—legal, social, or moral, to make it to the
person to whom it is made, and the person to whom it is made has a corresponding
interest or duty to receive it. This reciprocity is essential. 6 But, it should be noted that
the defence of qualified privilege would not

_____________________

1. Winfield, Ibid., p. 279.

2. Minter v. Priest, cit. Ibid.

3. Ibid.

4. (1843) 1 KB 319.

5. (1894) 1 QB 842.

6. R.K. Karanjia v. Krishnaraj M.D. Thackersey, MANU/MH/0073/1970 : AIR 1970 Bom 424.

be available to the defendant if he has made the communication with express malice.
An important case on this point is that of Tushar Kanti Ghosh v. Bina Bowmic.1

The facts were that Mrs. Bina Bowmic filed a suit against the editor and others of Amrit
Bazar Patrika for publishing a defamatory statement against her. The relevant part of
the defamatory statement is as follows: "Another daylightrobbery was committed by
Mrs. Bina Bowmic's Union members and their hirelings early yesterday (Friday) morning
when our van containing thousands of copies of Amrit Bazar Patrika and Jugantar were
looted at the Hazara Road junction distributing centre. As soon as the copies of two
issues were taken out of the van, 20 to 25 men pounced upon them, destroyed some
and carried away the rest presumably for selling them and pocketing the ill-gotten
gains."

The court held that it was a defamatory statement by observing that the plain meaning
of the libellous wordings was that an organisation or men headed by the respondent
had committed one or more day light robberies in the past and they committed other
robberies with hired persons the previous days too.

The court conceded that the matter was of common interest and the defence of fair
comment could be availed of. But the court observed that "it is one thing to comment
upon, even with proved acts, of a public man and quite another to assert that he has
been guilty of a particular act of misconduct. The publication of present case represents
the plaintiff as a person who has also been guilty of trickery and employment of
hirelings, and committing acts of violence including daylight robbery." Judged from the
facts, the court held that it was not a fair comment but an assertion that the plaintiff
was guilty of misconduct. The publication in the case was, therefore, not held defensible
as protected by the right of fair comment.

The court accepted the plea that the occasion was privileged but stated that the defence
of qualified privilege could be granted only if it was of common interest and without
express malice.

The court held that there was common interest of the defendants, their subscribers and
the advertisers because of the strike situation and consequently delay in delivery of
newspaper. Chakravarti, C.J. observed "Common interest will apply in the present case,
because it was not another newspaper which had published the statement, but the
"Amrita Bazar Partrika" itself which and the readers of which were equally and directly
interested in the activities of the Union of its workers which was trying to bring about a
suspension of the paper. To that extent the occasion was protected by qualified
privilege." But the protection of qualified privilege will not be available to the defendant
if the statement was made with express malice.

The court in explaining express malice observed: "A defamatory statement not germane
in any way to the privileged occasion and not pertinent to defendant's vindication is
itself evidence of malice. In the case of a qualified

______________________

1. 1953 CWN 378.

privilege, the plaintiff must prove malice in fact, that is the express malice as
distinguished from implied malice." Express malice means an actual wrong state of mind
in which the defendant acted, i.e., an indirect and wrong motive, such as, spite, ill-will
or prejudice or with knowledge that the statement was untrue or recklessly careless—
whether it was true or false." One of the ways in which the plaintiff can prove such
wrong state of mind is by referring to the statement itself which may furnish evidence
of express malice (Adam v. Ward, 1917 AC 321). Malice is proved when the publication
is found to contain unproved and libellous averments of fact recklessly made (Morrison
v. Belcher, (1963) 3 F&F 614). In the present case the court found that in order to
serve or protect those common interests, it was not necessary to state that member of
the plaintiff's union had employed hirelings or that the Union had been affiliated to the
B.P.N.T.U.C., only as a subterfuge. Thus, the defendant acted from express malice i.e.,
not for the purpose which would excuse them, but for an indirect purpose, if not also
out of spite or in a revengeful spirit. Accordingly, the court held that the protection of
qualified privilege would not be available to the defendant as they had acted with
express malice.

Another important case on qualified privilege, public interest and express malice in
relation to defamation is that of R.K Karanjia v. Krishnaraj M.D. Thackersey.1

The Blitz, an English Weekly, in its issue dated Sept. 24, 1960, published an article
directing its attack against a business organisation known by the name of House of
Thackersey of which the plaintiff was the head. The writer, under the pen name of
Blitz's Rocket Buster, intended to expose, in a series of articles, how this House of
Thackersey, consisting principally of the plaintiff, his brothers, their wives and close
relations and friends, built up a vast empire of wealth. The article suggested that the
plaintiff, as the chairman of the Textile Control Board exploited his official position to
achieve this end by having recourse to unlawful and questionable means involving tax
evasion on a colossal scales, financial jugglery, importexport rackets and customs and
foreign exchange violations. The article also suggested that owing to the conditions
prevailing at the time and owing to the enormous power and prestige wielded by the
plaintiff, investigations into the operations of the "House" got bogged down for years
leaving the House of Thackersey to acquire great wealth.

The plaintiffrespondent brought an action against the editor, the owners and printer of
the Blitz. The printer tendered the apology and the case was withdrawn against him.
The only defence pleaded before the court was "qualified privilege". The Bombay High
Court rejected this plea on the ground that the element of duty in communicating the
statement was missing on the ground that even if the matter is of general public
interest, yet the person or the newspaper who wants to communicate to the general
public must also have duty to communicate, and if no such duty, apart from the fact
that the matter is one of public interest can be spelt in the particular circumstances of
the case, the publication could not be said to be upon a particular occasion. The second
reason

______________________

1. MANU/MH/0073/1970 : AIR 1970 Bom 424.

for rejecting the defence of qualified privilege was that it was published maliciously, not
with the idea to serve public interest but with a view to expose the plaintiff in order to
take revenge because on an earlier occasion plaintiff had made the defendant editor to
apologise for publishing a defamatory statement.

9. Publication of parliamentary, judicial or other public proceedings

Parliamentary proceedings.—If the reports of parliamentary proceedings are published

by or under authority of either House of Legislature (Parliament or State Legislature),
they are absolutely privileged.1

Even if a person publishes these reports without the authority of the Legislature, he will
be protected by qualified privilege. Section 3 (1) of the Parliamentary Proceedings
(Protection of Publication) Act, 1977, provides that "no person shall be liable to any
proceedings, civil or criminal, in any court in respect of the publication in a newspaper
of a substantially true report of any proceedings of either House of Parliament unless
the publication is proved to have been made with malice." Section 3(2) provides that
the aforesaid protection will not be available to him unless the publication is for public
good. Thus, a person can claim qualified privilege if he publishes the Parliamentary
proceedings substantially true, without malice and for public good.2

Judicial or other public proceedings.—The publication of Judicial and quasi judicial

proceedings and proceedings of public meeting also enjoy qualified privilege.3 Thus, the
publication of Court proceedings or Report of a commission which is set up to enquire
into a matter of public interest enjoy qualified privilege provided they are substantially
true, without malice and of public interest.4

—————

____________________

1. Articles 105(2) and 194(2) of the Constitution of India.

2. See, Cook v. Alexander, discussed supra; Clark v. Malyaneux, (1877) 3 QBD 237, where it was stated

that malice does not mean malice in law but actual malice, that which is called malice. See also, Tushar
 Kanti Ghosh v. Bina Bowmic, supra, and R.K. Karanjia v. Krishnaraj M.D. Thackersey, supra, for the

definition of actual or express malice.

3. King v. J. Wright, (1799) 8 TLR 293.

4. Clark v. Malyneux, (1877) 3 QBD 237; Horrocks v. Lawe, (1964) 1 All ER 662.

© Universal law Publishing Co.

   

CHAPTER 21

NUISANCE

SYNOPSIS

1. Introduction

2. Public nuisance

3. Private nuisance

3.1. Undue or unreasonable interference

3.2. Interference with the use or enjoyment of property

3.3. Damage

4. Defences

5. Remedies

6. Distinction between public and private nuisance

7. Distinction between nuisance and trespass

8. Nuisance and Negligence Distinguished

1. Introduction

The word "nuisance" has been derived from the French word `nuire' and Latin word
`nocere' or `nocumentum' which in its legal sense means "annoyance" or "harm"; and
indeed the element of unlawful `annoyance' is the only thing common to all nuisances.
Every one thinks that he should use his land in a manner in which he likes and on the
other hand, his neighbour wants that he should have a quiet enjoyment of his land. Law
of nuisance, therefore, attempts to preserve a balance between these two conflicting
interests. The question arises as to how much activity of a person on his land should be
allowed so that his neighbour's right of enjoyment of land is not unduly interfered with?
In such a case we have to take into account many factors viz., defendant's conduct,
degree of interference, conflicting interests etc., to preserve a balance between the two.
There is no controversy in the modern world that every one must endure some degree
of noise, dust, smell, smoke, vibration, the escape of effluent etc. from his neighbour—
otherwise the modern life would be impossible. Thus, slight annoyance to a neighbour
due to an activity of an individual on his land should not be made actionable nuisance;
whereas an activity of any individual which is of continuous or recurrent nature and
unduly interferes with the use or enjoyment of land of his neighbour should be made
actionable. Nuisance may, therefore, be described as something that "worketh hurt,
inconvenience, or damage.1 However, an activity of a person may result in annoyance
to a large number of persons or class of persons, or it may result in annoyance to one
or very small number of persons The former is called a `public nuisance' and the latter
a `private nuisance'. The reason for this division is that if civil action is allowed to a
large number of persons or class of persons, there may be hundreds of actions for a
single act of nuisance. To avoid multiplicity of suits the law makes such a nuisance as
"public nuisance" which is punishable under the criminal law of the land. 2 However,
where the activity of an individual results in annoyance to one or very small number of
persons, there may be one or few Law suits. The law, therefore, makes such a nuisance
as "private nuisance" and permits civil action in tort. Accordingly, nuisance has been
divided into two kinds:

1. Public nuisance

2. Private nuisance

2. Public nuisance

Public nuisance, as stated above, is a crime. It materially affects the reasonable comfort
and convenience of life of the people in general or a class of persons who come within
the sphere or neighbourhood of its operation. Section 268 of the I.P.C. provides that a
person is guilty of 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 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." For example, throwing fireworks about in the street or in a public park or
obstructing public highways are examples of public nuisance.3 Such activities cause
inconvenience to many persons but none of them can bring a civil action against the
wrongdoer. Of course, since it is a crime, the offender may be punished under criminal
law. However, when from such act there is some special injury to an individual, different
from what is suffered by the public in general, he may institute civil proceedings for
damages against the offender or wrongdoer. Thus, a "public nuisance" may become
"private nuisance" when there is some special damage or injury to a person. A beautiful
illustration on this point is the case of Soltau v. De Held.4

De Held was the priest of a Roman Catholic chapel. The chapel's bell was rung at all
hours of day and night. The plaintiff, Soltau, resided next door to the chapel. All the
people of the vicinity were annoyed by the sound of the bell, but the plaintiff, being at
next door, was very much disturbed. It was held by the court that it was a public
nuisance. Since it proved particularly obnoxious to the plaintiff and satisfied the
requirements for a suit by a private individual for public nuisance, it became, so far as
the plaintiff was concerned, a private nuisance and the plaintiff was held entitled to an
injunction.

________________________

1. Blackstone, quoted in Weir, A Casebook on Tort, 3rd Edn., Chap 10.

2. Section 268 of the Indian Penal Code.

3. See Winfield, op. cit., p. 317.

4. (1851) 2 Sim RS 133.

But where a public nuisance does not cause any special damage or particular injury, an
individual, being annoyed like others, cannot file a civil suit. A case on this point is of
Winter Bottom v. Lord Derby.1

A public footway was blocked by the defendant. The plaintiff was annoyed because
sometimes he had to go by another route and sometimes he incurred expenditure in
removing the obstruction. The plaintiff, therefore, brought a suit against the defendant
in civil court for damages. Holding it a public nuisance, the court stated that the plaintiff
cannot bring a suit for private nuisance as he had suffered damage not more than any
other member of the public.

Thus, a private individual can bring a civil action in respect of public nuisance, if he
proves that he has suffered a particular injury to himself beyond that suffered by the
test of the public. In the case of Dr. Ram Raj Singh v. Babu Lal 2, the brickgrinding
machine, erected by the defendant in his premises, generated dust and polluted the
whole atmosphere. In the adjoining premises, the plaintiff was a medical practitioner.
The dust entered the consulting chamber of the plaintiff which caused physical
inconvenience to him and patients. The red coating on clothes, caused by the dust, was
visible. Thus, special damage to the plaintiff had been proved and the court granted
permanent injunction restraining the defendant from running his brick grinding machine
there. For public nuisance, however, the appropriate remedy has been provided under
section 268 of the I.P.C. coupled with sections 133 to 143 of the Criminal Procedure
Code.3

3. Private nuisance

Private nuisance may be described as unlawful interference with a person's use or

enjoyment of land, or some right over, or in connection with it.4 Generally, the essence
of a nuisance is a condition or activity which is either continuous or recurrent and
unduly interferes with the use or enjoyment of land. In every case of nuisance,
following elements are to be proved by the plaintiff:

1. Undue or unreasonable interference

2. Interference must be with the use or enjoyment of land

3. Damage

3.1. Undue or unreasonable interference

Interference may cause personal discomfort to the plaintiff or may cause damage to the
plaintiff's property. It is not every interference that may amount to nuisance. Only that
interference which is considered undue or unreasonable

______________________

1. 1867 LR Exch 316; See also Nubert v. Groves, (1974) 1 Esp 147; Campbell v. Padsington Corporation,

(1911) 1 KB 869; Rose v. Miles, (1815) 4 M&S 101; Blundy, C & Co. v. L & N.E. Rly. Co., (1913) 2 KB 234.

2. MANU/UP/0286/1982 : AIR 1982 All 285.

3. Under Section 91 of the Civil Procedure Code, in the case of a public nuisance the Advocate General, or

two or more persons having obtained the consent in writing of the Advocate General, may institute a suit

though no special damage has been caused, for a declaration and injunction or for such other relief as may

be appropriate in the circumstances of the case. See also, Advocate-General v. Haji Ismail Hashman,

(1909) 12 Bom LR 274.

4. Winfield on Tort, op. cit., p. 318.

may amount to nuisance. But the question is: what is undue or unreasonable
interference? It has been held that anything which is not "reasonable according to the,
ordinary usages of mankind living in society, or more correctly in particular
society"1 can be called unreasonable. Thus, anything which is unusual or unnecessary or
excessive according to the ordinary usages of mankind living in particular society, may
amount to being unreasonable. For example, if unnecessary or excessive noise, dust or
vibration are created during the erection of a building an action may lie. 2 The second
important element in the case of private nuisance is that it must be continuous or
repetitive. For example, A daily beats the drum in the night from 10 p.m. to 3 a.m. with
the result that B his neighbour, is unable to sleep in the night. Here the activity of A is
unusual and of recurrent nature which unduly interferes with the B's enjoyment of land.
It may be noted that the aforesaid activity is unusual because it is not in accordance
with the usage of mankind in the particular society. On the other hand, it may be stated
that everyone must put up with such necessary noise as accompanies the ordinary
occupation of neighbouring land, for instance no cause of action lies in respect of the
usual and reasonable sounds which accompany building operations.3 It is, therefore,
important to note that the distinction between what is `not unusual' or `excessive' is
necessarily one of fact and depends upon the usage of mankind living in a particular
society.

It may also be noted that a right to prevent the occurrence of nuisance has been
recognised, before the nuisance was actually caused. In Radhey Shyam v. Gur
Prasad,4 the plaintiff-respondent Gur Prasad filed a suit for permanent injunction to
restrain the defendantappellant Radhey Shyam from installing and running a flour mill
in his premises. It was alleged that the plaintiff was occupying the first floor in the same
premises and the installation of mill would cause nuisance inasmuch as the plaintiff
would lose their peace on account of rattling noise of the flour mill and thereby his
health would also be adversely affected. It was held by the court that the impugned
machines would seriously interfere with the physical comfort of the plaintiff and as such
it amounted to nuisance, and the plaintiff was entitled to an injunction against the
defendant.

Another case worth mentioning on this point is that of Shanmughavel Chettiar v. Sri
Ramkumar Ginning Firm5, where the plaintiff respondent constructed a building to
locate ginning factory there, after obtaining licence from the Panchayat Union. The
plaintiff had invested a huge amount and had also made arrangement to start the
ginning factory. Thereafter, the Panchayat Union also

________________________

1. Andreae v. Selfridge & Co., 1918 Ch 1.

2. Bamford v. Turnley, (1862) 2 B&S 66.

3. Bamford v. Turnley, (1862) 2 B&S 66; See also Andreae v. Selfridge & Co., 1938 Ch 1, where in

demolishing property close to the plaintiff's hotel, the defendants caused unnecessary noise and created

unnecessary dust. It was held that although no cause of action arises in respect of inconvenience

reasonably created by noise, etc. during building operations, but in this case the defendants had not taken

care to prevent unnecessary noise and dust, and thus, they had created a nuisance.

4. MANU/UP/0023/1978 : AIR 1978 All 86

5. MANU/TN/0109/1987 : AIR 1987 Mad 28.

granted a licence to the defendantsappellant to start a brick-kiln on the adjacent land.
The plaintiff filed a suit for injunction on the ground that smoke and fumes from the
proposed brickkiln would spoil the quality of cotton and that sparks from the brick kiln
were likely to cause fire in the cotton godown and the factory. The court held that the
erection of the proposed brick-kiln adjacent to factory would amount to actionable
nuisance and granted injunction. It was also stated by the court that the grant of
licence to the defendant could not prevent the plaintiff from obtaining an injunction for
the likely nuisance.

But where there is an annoyance or hurt to religious feelings that may not amount to
actionable wrong. In Ushaben v. Bhagya Laxmi Chitra Mandir 1, the plaintiff sued the
defendant for a permanent injunction to restrain the defendant from exhibiting the film
"Jai Santoshi Maa", on the ground that the film was a nuisance and her religious
feelings were hurt because Goddesses Saraswati, Laxmi and Parvati were depicted as
jealous and were ridiculed. The Court held that hurt to religious feelings was not an
actionable wrong and that the plaintiff was free not to see the movie again. The balance
of convenience was in favour of the defendants and, therefore, it was not a case of
nuisance.

Abnormal sensitive person or property.—Another important point is that an act

which is otherwise reasonable does not become unreasonable because of the fact that
the plaintiff is abnormally sensitive to a particular thing. If some noises disturb only the
plaintiff in his sleep or work due to his over sensitiveness but do not disturb or annoy
other ordinary persons, it is not a nuisance even though plaintiff has suffered
substantial damage. Thus, in Heath v. Mayor of Brighton 2, the facts were that the
incumbent and trustees of a Church were annoyed by a "buzzing sound" from the
defendant's power station. In an action by the plaintiffs, the court refused to grant
injunction on the ground that the `buzzing' sound did not cause annoyance to any other
person and the sound was not such as could distract the attention of ordinary person
attending the church.

The same rule applies to sensitive property. Robinson v. Kilvert3 illustrates this point.
The defendant began to manufacture paperboxes in the cellar of a house, the upper
portion of which was occupied by the plaintiff. The defendant heated the cellar in order
to manufacture paper-boxes. This heat raised the temperature on the plaintiff's floor
which diminished the value of brown paper kept there. It was found as a matter of fact
that this heat did not cause any inconvenience to plaintiff's workmen nor would it have
injured paper generally. In an action by the plaintiff, the court held that the defendant
was not liable for nuisance on the ground that "a man who carries on an exceptionally
delicate trade cannot complain that he it is injured by his neighbour doing something
lawful on his property, if it is something which would not injure anything but an
exceptionally delicate trade."4
________________________

1. MANU/GJ/0057/1978 : AIR 1978 Guj 13.

2. (1908) 24 TLR 414.

3. (1889) 41 Ch E 88.

4. Winfield, op. cit., p. 328.

Intention (Malice).—Is malice relevant in nuisance? The defendant's intent to injure

or annoy may be a relevant factor in nuisance. In other words; an act of the defendant
which is otherwise lawful may become a nuisance if done with malice. An important
case on this point is of Christie v. Davey.1

In this case the facts were that the plaintiff and defendant were neighbours. The
plaintiff and his family were fond of music. They often made a considerable noise by
singing and playing various instruments. This annoyed the defendant and, therefore, he
retaliated by hammering against the wall, beating trays, shrieking and whistling. The
court held the defendant liable for nuisance and granted injunction against him on the
ground that he had acted deliberately and maliciously for the purpose of annoying the
plaintiff. It was observed by the court that "if what has taken place had occurred
between two sets of persons both perfectly innocent, I should have taken an entirely
different view of the case. But I am persuaded that what was done by the defendant
was done for the purpose of annoyance."2

But it was only after two years the House of Lords in Mayor of Bradford v.
Pickles,3 asserted that a bad motive cannot make wrongful an act otherwise legal. This
principle was reaffirmed by the House of Lords in Allen v. Flood.4 It is surprising that
none of the two decisions of the House of Lords referred to the case of Christie v.
Davey.

However, in Hollywood Silver Fox Farm Ltd. v. Emmett5, the court of Appeal followed
the decision of Christie v. Davey.

The facts were that plaintiff carried on the business of breeding silver foxes on his land.
During the season the vixens are very nervous, and if disturbed, refuse to breed and
may also kill their young. The defendant, an adjoining landowner, maliciously
discharged guns on his own land as near as possible to the breeding pens for the
purpose of disturbing plaintiff's vixens. This malicious action of the defendant caused
substantial damage to silver foxes. In an action by the plaintiff, Macnaghten L.J., held
that the intention of the defendant is relevant in determining liability in nuisance and
granted injunction alongwith damages to the plaintiff. Here, it may be pointed out, that
the court had taken into consideration "the purpose of the defendant's activity",6 and
stated that acts otherwise on the ground of reciprocity "if done maliciously and wantonly
with the object of injuring a neighbour are devoid of any social utility and cannot be
regarded as reasonable". It is submitted that this is a better view. Winfield also agrees
with this view and states—"the law of private nuisance gives to each party a qualified
privilege of causing harm to the other. When the activity of one

_________________________

1. (1893) 1 Ch 316.

2. Christie v. Davey, (1893) 1 Ch 326 (327).

3. 1895 AC 587.

4. 1828 AC 1.

5. (1936) 2 KB 468.

6. See Harrison v. S. & V. Water Co., (1891) 2 Ch 409.

party is motivated principally by malice, his privilege is at an end and he is liable for the
damage he has caused."1

The difference between the two lines of cases lies in the fact that in Christie and
Hollywood cases the defendant interfered with a legally protected interest of the
plaintiff; whereas in Bradford v. Pickles case, the defendant's activity had not infringed
any such right or interest of the plaintiff because no interest in percolating waters exists
until appropriation.2 The court, therefore, held that in the former kinds of cases "malice"
is material, whereas in the latter kinds of cases "malice" is not material.

3.2. Interference with the use or enjoyment of property

It is because of historical reasons that private nuisance is confined in its scope to injury
caused in respect of the use or enjoyment of land.3 Thus, in private nuisance an
interference may cause either (a) injury to property or (b) injury to comfort or health of
an occupier of land.

Injury to property.—An unauthorised interference resulting in injury to property or

proprietary rights is actionable as a nuisance. The interference may be by allowing a
tree to overhang its branches or to grow its roots into the plaintiff's soil; or where the
defendant causes or allows the escape of harmful things such as smoke, gas, fumes or
electricity. Thus, in St. Helen's Smelting Co. v. Tipping, 4 the fumes from the defendant's
factory damaged plaintiff's tree and plants. The defendants were held liable because
such damage was an injury to the property of the plaintiff.

Even if there is no injury to the property owned or occupied by the plaintiff but to some
right over or in connection with it, an action may lie for nuisance. A case worth
mentioning on this point is that of Pakkle v. Aiyasami Ganapathi.5

In this case a suit was filed by some villagers, in a representative capacity, to seek an
injunction from the court in order to restrain the defendants from laying the salt pans in
the tank. It was alleged by the plaintiffs that laying the salt pans in the tank would
make the water in the tank useless for bathing and drinking purposes. On the other
hand, the defendant contended that the plaintiffs had no proprietary rights on the suit
land since it was a property of the government, who alone could prevent the defendants
from doing anything. The court found that although the tank belonged to the
government but the villagers had an immemorial right to the use of the water in the
tank for their drinking and bathing purposes as also for bathing and washing cattle. It
was also found that

_______________________

1. Winfield, op. cit., p. 33; See also, Palmer v. Loder, 1962 CLY 2233, where perpetual injunction was

granted to restrain defendant from interfering with plaintiff's enjoyment of her flat by shouting, banging,

laughing, ringing doorbells or otherwise behaving so as to cause a nuisance by noise to her.

2. See Action v. Blundell, (1943) 12 M&W 24; See also Langbrook Properties Ltd. v. Surrey C.C., (1969) 3

All ER 1424; Friedman Motive in the English Law of Nuisance, 40 Va LR 583.

3. The Wagon Mound case (No. 2) (1963) 1 Lloyd's Rep 402 (427), See also Pollock on Law of Tort, (15th

Edn.), p. 302.

4. (1865) 11 HL Cas 642; See also, Halsey v. Easo Petroleum Co. Ltd., (1961) 2 All ER 145.

5. MANU/TN/0215/1969 : AIR 1969 Mad 351.

there was water in the tank and that the water had become saltish. Rejecting the
contentions of the defendant, the court held that the plaintiffs would be entitled to an
injunction even though the land in respect of which they were claiming injunction was
not owned by them and the only right which they had was a common right over the
property belonging to government. The court stated: "Once it is established that the
villagers have a common right over the water in the tank for purpose of using it for their
bathing and drinking purposes, any interference with that right would give them a cause
of action, even though the interference is not in respect of land belonging to the
plaintiff. The action of the defendants would amount to nuisance." The court further
stated that "it may be that if the government permits the defendants to lay salt pans in
the tank, circumstances might arise where the injunction might not be of any use. But
till that contingency arises the plaintiffs are entitled to injunction prayed for.

Incorporeal property.—Actions for private nuisance also lie for interferences with
easements, profitsaprendre and certain rights which are usually called "natural rights."
Rights such as the right to support of one's land by one's neighbour's land are inherent
in the ownership or occupation of the land, and unlike easements and similar
incorporeal hereditaments, do not need to be acquired by grant or prescription. The
general rule in such kind of nuisances is that they are actionable without proof of actual
damage.

(a) Interference with the right to support.—Nature of support may be for the
land or for the building. The nature of right differs in both these cases. They are
discussed below.

(i) Support for Land.—The right to have one's land supported by one's
neighbour's is a natural right. If this right of support is removed by the
neighbour either laterally or from beneath, it amounts to nuisance.1 This
natural right is available only in respect of land and not for any structure
or building on the land. However, in a case where the damage to the
building is consequential to the damage to natural right of support, an
action for withdrawal of support may lie. Thus, a disturbance of the
natural right to support for land may give rise to a claim for
consequential damage to buildings. A case on this point is that of Stroyan
v. Knowles.2

The facts were that defendant's mining operations caused the plaintiff's
land to subside, which in consequence, damaged plaintiff's factory. It was
found by the court that the weight of the building (factory) did not
contribute to the causing of the subsidence. The court held the defendant
liable for the consequential damage.

It may be added that mere removal or withdrawal of support or

subsidence is not actionable unless the plaintiff has suffered substantial
damage. It is so, because section 34 of the Indian Easements Act
provides that "the removal of the means of support to which dominant
owner is entitled does not give rise to a

_______________________

1. "The actual subsidence of the plaintiffs land is however the essence of his claim; not just the withdrawal

without effect. The nuisance arises when the support ceases to do its work, not when the excavation is

made." See James Brown General Principles of Torts, 4th Edn., p. 194.

2. (1861) 6 H&N 454.

right to recover compensation, unless and until substantial damage is

actually sustained."

(ii) Support for buildings by grant of prescription.—A man has no right to

load his own soil, so as to make it require the support of that of his
 neighbour.1 However, this right of support may be acquired by grant or
prescription. Where this right has been acquired, a nuisance will be
committed if the support is withdrawn. It may be added that where such
a right is acquired it is not only in respect of support by neighbouring
land but also by neighbouring buildings.2 Thus, it has been held that a
right to support for buildings may he acquired by grant or prescription.
An important case on this point is that of Dalton v. Angus.3

The facts were that the plaintiff and the defendant were having adjoining
properties. Each had a house which, not touching each other, was
supported laterally by the neighbouring land. The plaintiff converted his
house into a factory which, then, became heavier and, therefore,
required stronger lateral support than previously. After twenty years the
defendant demolished his house and made excavations upon the site. In
consequence, the building (factory) subsided. In an action by the plaintiff
for the damage to his building, the court held that the plaintiff had
acquired a right by prescription to the support of building. The plaintiff,
therefore, succeeded in his claim.

(b) Interference with the right to light and air.—The right to light is not a natural
right. It may be acquired by grant or prescription. But once it has been acquired,
any substantial interference with it will be actionable as a nuisance; and the
plaintiff will be entitled to an injunction including the removal of the source of
the interference. Thus, in Coils v. Home and Colonial Stores Ltd.,4 a building was
erected by the defendants which caused diminution of light to only two ground
floor windows of the plaintiff's house. It was found by the court that electric light
had always been needed in that place even before the erection of building by the
defendant. The court held that it was "not sufficient obstruction of light so as to
constitute a nuisance." The plaintiff had, in fact, less light than before. This is
not a substantial privation of light and, therefore, the plaintiff cannot succeed in
his claim.

Similarly, a right to access of air can be acquired by grant or prescription. This

right appertains to access through a defined channel or aperture.5 This
necessarily implies that such a right does not appertain to access of air to the
plaintiff's land generally. Thus in Webb v. Bird6, the defendant built a
schoolbuilding which obstructed the passage of air to the plaintiff's windmill. The
court held that it did not amount to nuisance.

________________________

1. Partriage v. Scott., (1838) 3 M&W 222, per B. Alderson.

 2. Lemaitre v. Davis, (1881) 19 Ch D 28.

3. (1881) 6 App Cas 740.

4. 1904 AC 179.

5. Bass v. Gregory, (1890) 25 QBD 481.

6. (1861) 10 CENS 268.

Right to light and air in India.—Similar provisions have been made regarding the
right to light and air under the Limitation Act, 1963 and the Indian Easement Acts,
1882. Section 25 of the Limitation Act, 19631 provides that the right of easement to
light, air, way, watercourse, use of water etc. can be acquired by prescription if the
right has been peaceably enjoyed as an easement, and as of right without interruption
and for twenty years. Such a right shall be absolute and indefeasible. But according to
section 33 of the Indian Easements Act2 an action can be brought against the defendant
if there is a substantial infringement of an easement of light, air, way, water etc. What
is substantial infringement of an easement depends upon the facts of each case and will
be decided on the basis of the principles laid down in the case of Coils v. Home and
Colonial Stores Ltd.3, discussed above.

Injury to comfort or health.—The interference with a man's comfort must be a

material interference with an ordinary and reasonable standard of comfort. It must be
considered in the light of the circumstances of the time and place.4 It differs from time
to time and place to place.5 Moreover, discomfort and inconvenience is determined, not
by taking into account the particular plaintiff, but on the basis of average man residing
in the same area.6

Thus, carrying on an offensive trade as to interfere with another's health and comfort or
his occupation of property is a nuisance.7 Smoke noise and offensive

_________________________

1. Section 25, Limitation Act, 1963 provides that "where the access and use of light or air to and for any

building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and

for twenty years, and where any way or watercourse or the use of any water or any other easement

(whether affirmative or negative) has been peaceably and openly enjoyed by any persons claiming title

there to as an easement and as of right without interruption and for twenty years, the right to such access

and use of light or air, way, water- course, use of water or other easement shall be absolute and

indefeasible. Each of the said periods of 20 years shall be taken to be a period ending within two years

before the institution of the suit wherein the claim to which such period relates is contested."

2. Section 33 of the Indian Easement Act, provides for suit for disturbance of easement in these words:

"The owner of any interest in the dominant heritage may institute a suit for compensation for the
 disturbance of the easement, or of any right accessary thereto provided that the disturbance has actually

caused substantial damage to the plaintiff." Explanation I provides: "The doing of any act likely to injure

the plaintiff by affecting the evidence of the easement, or by materially diminishing the value of dominant

heritage, is substantial damage within the meaning of this section". Explanation II provides: "Where the

easement disturbed is a right to the free passage of light passing to the opening in a house, no damage is

substantial within the meaning of this section, unless it falls within the first explanation, or interferes

materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed

business in the dominant heritage as beneficially as he had done previous to instituting the suit."

Explanation III provides, "where the easement disturbed is a right to the free passage of air to the opening

in a house, damage is substantial within the meaning of this section if it interferes materially with the

physical comfort of the plaintiff, though it is not injurious to his health."

3. 1904 AC 179.

4. Bland v. Yates, 1914 58 Sol 612.

5. P. & A. Ltd. v. Rushmere, 1907 AC 121.

6. Discussed, supra.

7. Galstaun v. D.L. Seal, (1905) 32 Cal 697; S. Chetty v. Rangappa Rajoo, 1918 MWN 293.

odours, although not injurious to health, may constitute a nuisance.1 Disturbance to

neighbours throughout the night by the noises of the horses kept in a building amounts
to a nuisance,2 accumulation of filth, sewage and stagnant water causing injury to
health and discomfort may amount to nuisance. An important case on this point is that
of Brijbala Prasad v. Patna Municipal Corporation.3

The plaintiffs houses were on a public lane, to the east of which there was a pucca
municipal drain. This was an important drain running in continuation of another drain
which drained of several mohallas of the town. Untreated sewage, filth and rubbish of
the town were carried through this drain and discharged into the Nahar (canal). The
drain was damaged at several places and this obstructed the free flow of water into the
canal and also caused the accumulation of stagnant water full of rubbish, sewege, filth,
emitting foul smell and being a sort of nursery for growth of germs. In an action by the
plaintiff against the Municipal Corporation, it was alleged that in spite of repeated
requests to repair the drain, the corporation failed to maintain it and that the health of
the people was in danger and in fact had caused diseases. The plaintiff who suffered
headache, pain and illness etc. due to this nuisance claimed Re. 1 as damages from the
Municipal Corporation. On the other hand, the defendant Corporation contended that it
did all that lay in its power to improve the condition of the drain and that it could not be
completely improved without introduction of modern sewerage scheme which was
beyond the financial resources of the Corporation. It was further contended that the
Corporation should not be made liable for breach of its statutory duty which amounts to
non-feasance.

The lower court held that nonrepairs and consequential nuisance amounted to
misfeasance and therefore the Corporation was liable. But on appeal, the lower
subordinate court held that the present nuisance resulted from nonfeasance for which
the corporation was not liable.

On appeal to the High Court, it was held that the angle of approach adopted by the
lower appellate court was faulty and that the distinction between misfeasance and
nonfeasance was of not relevance in a case of nuisance. The distinction is relevant only
in the case of highways repairable by the public at large. It does not apply to any other
branch of law. The court observed that it was a well recognised principle of law that
where a person was guilty of a breach of duty to the public, an action could be
maintained by any person who suffered special damage thereby. The court quoted with
approval the principle laid down in the case of Lyme Reigs v. Henley as follows:

"When the King for the benefit of the public has made a certain grant, imposing
certain public duties and that grant has been accepted, we are of opinion that
the public may enforce the performance of these duties by indictment...... This
principle applied not only to grants made by the king but also to grants made by
a statute. The principle of law applies in India too."

____________________

1. Krishna Chandra v. Gopal Chand, (1937) 39 PLR 664.

2. Ball v. Ray, 1873 LR 8 Ch App 467.

3. MANU/BH/0074/1959 : AIR 1959 Pat 273.

On the basis of above principle, the court held that if a public authority so exercises any
of its functions as to cause a private nuisance to any person, the authority is liable in
consequence to be sued in any court of law for damages or injunction, as any other
subject is liable, unless it can rely upon the same statute as providing by express
language or necessary or proper inference, a defence, to such an action. The Bihar and
Orissa Municipal Act does not permit the commission of such nuisance. Accordingly, the
court held the corporation liable for nuisance.

3.3. Damage

Actual damage is required to be proved in case of nuisance. In public nuisance, an

action can be brought against the defendant only when the plaintiff proves special
damage to him. But, where the nuisance concerns something other than physical
damage to property, the law presumes damage without imposing upon the plaintiff the
difficult task of furnishing strict proof of it. Fay v. Prentice, illustrates this point. In this
case, the cornice of defendant's house projected over plaintiff's garden. It was held by
the court that this was a nuisance and the plaintiff need not establish that rain had
actually fallen from the cornice and damaged the garden.

4. Defences

A number of defences, such as, nuisance to a particular person is for public good,
nuisance due to acts of others, reasonable care, plaintiff coming to nuisance etc., have
been pleaded in an action for nuisance. Generally these defences have been rejected by
the court. The following are valid defences to an action for nuisance.

Prescription.—A nuisance can be legalised by prescription. This is a special defence

available in the case of nuisance. The right to continue a private nuisance may be
acquired as easement by prescription.1 It is also a valid defence to an action for
nuisance that the said nuisance is under the terms of grant. A right to commit a private
nuisance can be acquired as an easement if it has been peacefully and openly enjoyed
as an easement and as of right, without interruption, and for twenty years. On the
expiry of twenty years, the nuisance becomes legalised as if it has been authorised by a
grant of the owner of servient land from the very beginning. But the period of twenty
years does not commence until the act complained of begins to be a nuisance. A case
worth mentioning on this point is that of Sturges v. Bridgeman.2

The facts were that the defendant, a confectioner, had a kitchen in the back of his
house. For over 20 years, the noise and vibration caused in the kitchen during
manufacturing process were not felt by the plaintiff, a physician, living in the adjacent
house. The physician made a consulting room in the garden which was in the back of his
house. It is at this time, that he felt that the noise and vibration caused in the kitchen
materially interfered with his practise. The court

_____________________

1. Discussed, supra.

2. Section 15, Indian Easement Act and Sec. 25, Limitation Act, 1963. It should be noted that there can be

no prescription in case of public nuisance.

granted injunction against the confectioner, and his claim of prescriptive right failed
because the interference had not been an actionable nuisance for the preceding period
of more than 20 years. Nuisance commenced only when the consulting room was built
by the physician at the back of his house.

Statutory authority.—Where a statute has authorised the doing of a particular act, all
remedies, whether by way of indictment or action, are taken away, provided that every
reasonable precaution consistent with the exercise of the statutory powers have been
taken. Thus, in Vaughan v. Taff Vale Rly. Co.1, the defendant under statutory authority
used locomotive engines on their railway. The escape of sparks from their engine
caused fire and the plaintiff suffered damage. They were not held liable in nuisance as
they had taken all reasonable precautions to prevent the escape. However, the liability
for nuisance cannot be avoided where the act authorised by the statute has been done
negligently.

5. Remedies

The remedies available to a person for nuisance are:

(a) Abatement

(b) Injunction

(c) Damages

Abatement.—Abatement means the removal of a nuisance by the party affected. In

such a case the removal must be peaceful, without danger to life or limb. If it is
necessary to remove the nuisance by entering on the land or property of another
person, prior notice should be given. A private individual cannot abate public nuisance,
except under certain circumstances.

Injunction.—Injunction can be obtained from the court only when it is shown that the
injury complained of, at present or impending, is such as by reason of its gravity, or its
permanent character, or both cannot be adequately compensated.

Damages.—This has already been discussed above. However, the plaintiff must show
that he has suffered damage to his person or property.

6. Distinction between public and private nuisance

Following are the distinction between public ad private nuisance:

(1) Private nuisance is an injury to individual in particular whereas public

nuisance is an injury to the public.

(2) Public nuisance affects public at large while private nuisance affects only one
person or determinate body of persons.

(3) The plaintiff in public nuisance has to prove that he suffered particular
damage beyond that which is suffered by entire community but under private
nuisance, the plaintiff may file a suit in civil court for damage or for injunction.

(4) A private nuisance may be done away with but a public nuisance cannot be
abated by an individual.
___________________

1. 5 H&N 679.

(5) A private nuisance may legalize by prescription but public nuisance can
never be legalized.

(6) Public nuisance is a crime in India and thus punishable whereas in private
nuisance which is a civil wrong, the plaintiff is awarded compensation.

(7) The plaintiff under private nuisance must prove interference with the
enjoyment of land whereas public nuisance is not necessarily linked with the use
of land.

7. Distinction between nuisance and trespass

(1) Trespass is an injury to possession itself while nuisance is an injury to some right
necessarily connected with possession.

(2) Trespass is actionable per se whereas nuisance (except in some cases) is actionable
only on proof of actual damage.

(3) Unauthorised entry upon another's land without causing any injury may constitute
trespass. Nuisance on the other hand involves unreasonable interference with other's
land.

(4) Trespass involves direct interference whereas interference may not be direct but
consequential in nuisance.

(5) The interference in trespass is always through some tangible object whereas in
nuisance it may be through the medium of intangible objects such as smell, vibration
etc.

8. Nuisance and Negligence Distinguished

In common law claim for nuisance does not exist as a separate theory of recovery from
negligence in every case, but only in those circumstances where there is a degree of
danger likely to result on damage inherent in the thing responsible for the harm,
beyond that arising from mere failure to exercise ordinary care in its use. This means
that the inherent degree of danger must be something more than negligence. If the
harm is nothing more than negligence, there is no claim for nuisance [Schlader v.
Interstate Power Co., 591 NW 2d 10 (Lowa 1999)]. In a claim for nuisance the plaintiff
has not to prove negligence or breach of duty to take reasonable care whereas in an
action of negligence he has to prove breach of duty to take reasonable care. In an
action for legal liability for damage caused to adjourning property by explosives, the
California Court following other cases, apply the res ipsa loquitur doctrine, and hold
that, inasmuch as powder does not ordinarily explode, there is the presumption of
negligence when it does, and that the defendant must show that he was not lacking in
the use of due care (Judson v. Giant Powder Co., (1895) 107 Cal 549; Kinney v.
Koopman (1897), 116 Ala 310: 22 So 593, Tuckachinsky v. Lehigh Co., (1901) 199 pa
515: 49 All 308.

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© Universal law Publishing Co.

   

CHAPTER 22

STRICT LIABILITY AND ABSOLUTE LIABILITY

SYNOPSIS

1. Meaning

2. Defences to the Rule (Exceptions to the Rule)

2.1. Default of the plaintiff

2.2. Consent of the plaintiff

2.3. Common benefit

2.4. Act of stranger

2.5. Act of God

2.6. Statutory authority

2.7. Act of State

3. Absolute Liability: A new development in India

3.1. Rule in M.C. Mehta v. Union of India

1. Meaning

We have seen in all the preceding Chapters that a person could be made liable in any
kind of tort only when he was either negligent or committed an intentional tort. But in
this Chapter we deal with `Absolute Liability' where a person is made liable even if he is
neither negligent nor wilfully commits a Tort. Absolute liability is, therefore, an
exception in the law of tort where the liability of a person arises even if he is not at
fault. This rule of absolute liability was first laid down by Justice Blackburn in 1868 in
the case of Rylands v. Fletcher. 1 Justice Blackburn was, therefore, the founder of
Absolute liability.

From the above it appears that absolute liability means liability without fault. The word
`absolute' indicates liability in all the circumstances and, therefore, there should not be
any exception. To put it in other way, the word `absolute' signifies `complete' or
`unconditional' liability without any exception. But Blackburn J., himself created
exceptions after laying down the rule of absolute liability. It was, therefore, a mistake
on the part of Justice Blackburn in using the word "absolute" liability. Winfield has
corrected that mistake and suggested that it should be called "strict" liability.2 Since
then it is properly regarded as a rule of "strict liability". This rule had its origin in the
cases of tort of `nuisance' but has developed in such a way that it is now quite distinct
from it.

______________________

1. 1868 LR 3 HL 330.

2. Winfield on Tort, op. cit., p. 361.

Rule in Rylands v. Fletcher1.—Fletcher was the lessee of coal mines and Rylands was
the owner of a mill. The coal mines and the mill were near to each other but on
separate lands. Rylands, the mill owner, employed an independent contractor, who were
apparently competent, to construct a reservoir on his land for the purpose of supply of
water to his mill. In the course of the work the contractors noticed some old shafts and
passages on Ryland's land. The contractors and his men did not suspect that these
shafts were connected with the mines of Fletcher, for the shafts appeared to be filled
with earth. The contractors did not block them up and, after the completion of reservoir,
when the water was filled in it, the old shafts burst downward and the water flowed
through these old shafts into the coal mines of Fletcher. He suffered heavy losses and
therefore instituted civil action for damages against Rylands. It was found as a matter
of fact that Rylands had not been negligent, although the contractors had been.

This case came before the Court of Exchequer which, by majority, decided in favour of
Rylands. But, on appeal, the Court of Exchequer Chambers unanimously reversed the
decision of the lower court and held Rylands liable. The judgement of the Court of
Exchequer Chamber was delivered by Justice Blackburn. He said:

"We think that the true rule of law is, that the person who for his own purposes
brings on his lands and collects and keeps there anything likely to do mischief if
it escapes, must keep it in at his peril, and, if he does not do so, is prima facie
answerable for all the damage which is the natural consequence of its escape."

After laying down the above rule, he stated a little later (which may be regarded as
exceptions) that the defendant "can excuse himself by showing that the escape was
owing to the plaintiff's default; or perhaps that the escape was the consequence of vis
major, or the act of God; but as nothing of this sort exists here, it is unnecessary to
inquire what excuse would be sufficient".

The above rule of Blackburn J., was confirmed by the House of Lords with two important
clarifications that the use of the land should be nonnatural (as was the position in
Ryland's case) and that the thing must have been brought on the land "which was not
naturally, there."

From the above, it appears that there must be two basic requirements in order to apply
the rule laid down by Justice Blackburn alongwith the clarifications made by the House
of Lords:

(a) Escape from one land to another.

(b) Nonnatural use of land.

Escape.—In order to apply the rule of strict liability it must be proved that the
dangerous things actually escaped from the area outside the occupation and control of
the defendant i.e., in other words, dangerous thing escaped from the defendant's land
on to the land of another and caused damage. For example is the case of Bhopal Gas
Tragedy. Here the poisonous gas escaped from the premises of Union Carbide Company
on to the lands and premises of other

____________________

1. 1868 LR 330.

persons and injured/killed thousands of persons.1 Where, however, the damage is

within the defendant's boundaries, the rule cannot be applied.2 Read v. Lyons & Co.
Ltd.3, illustrates this point.

The plaintiff was an Inspector in the ammunition factory. She was injured while on duty,
by the explosion of the shell within the premises of the factory. In an action by the
plaintiff, the court held that the respondents were not liable under strict liability as the
injury was within the factory and there was no escape.

Similarly in India, in N. Narayanan Bhattathiripad v. Travancore Government, 4 the

Government constructed a dam across the stream for storing the water to be used for
irrigation purposes. As a result of heavy rainfall the water could not pass speedily
through the sluices in the dam and spread over the paddy field of the plaintiff. It was
held by the court that there was no escape of water stored up or collected in the dam.
In fact the complaint was that the dam stood in the way of a speedy escape of the
excess water that had been collected in the plaintiff's paddy lands as a result of the
unusually heavy rains. Apart from this, the court also held that this was not the
nonnatural use of land in India.

In Tmt. Selvi v. State of Tamil Nadu5, a child died after falling into sewage line left open
due to the improper maintenance of the manhole by metro water supply and sewerage
board. The Madras High Court held that the board is liable to compensate death of child.

In Chellamma v. Kerala State Electricity Board6, the deceased got electrocuted while
rescuing a stranger from electric shock who was allegedly meddling with a transformer
authorisedly. There was no circuit breaker in the transformer due to which while putting
on link pipe after repairs the stranger sustained electric shock and the deceased became
victim while rescuing him. The Kerala High Court held that the exception of unforeseen
act of stranger could be applied and the board could not be exonerated on the ground of
unforeseen act of stranger. The Court held the claimants entitled to compensation for
unfortunate death of deceased.

Non Natural use of Land.—The term "natural" is inherently vague and confusing for it
has two different meanings. In its primary sense it indicates "that which exists in or by
nature and is not artificial." In its second meaning it indicates "that which is ordinary
and usual, even though, it may be artificial" 7. The courts now understand nonnatural
use in latter sense. A case, which has been followed by a large number of cases, is that
of Rickards v. Lothian8 where the nonnatural user has been defined in the following
words:

"It must be some special use bringing with it increased danger to others and
must not merely be the ordinary use of the land or such a use as is proper for
the general benefit of the community."

Another approach in respect of nonnatural use of land being applied by the courts is
that the use is similar to the idea of "unreasonable" or "abnormal" risk

__________________________

1. See, S.P. Singh Gas Tragedy and Legal Remedy, The Hindustan Times, Dec. 17, 1984, p. 9.

2. See Howard v. Furness Lines Ltd., (1936) 2 All ER 781.

3. (1947) 63 LQR 159 (160-163).

4. AIR 1956 Trav-Co 225.

5. AIR 2010 (NOC) 255 (Mad).

6. AIR 2010 (NOC) 355 (Ker).

7. See also, Newark, Natural User and Rylands v. Fletcher, (1961) 24 MLR 567.
 8. 1913 AC 263.

in negligence cases and that ought not to be borne by the public. It has given to the
courts a device for determining liability in accordance with what they consider to be
public policy1. In fact there is no objective universal test of what is nonnatural. It
depends on the courts to make its own value judgement of the defendant's conduct, its
social utility etc. Any way, the two approaches have one thing in common i.e.,
"increased danger" or "unreasonable danger" or "abnormal risk" which may be created
by some special use of the land2. This should, therefore, be taken as basic test. Thus,
storing of water as in Rylands case, or industrial water under pressure, or gas3 and
electricity4 in bulk fire5, explosions6, noxious fumes7 vibrations8, poisonous vegetation9,
rusty wire from a decade fence,10 colliery11 and even noxious persons12, have been held
by the courts as nonnatural use of land. On the other hand, electric wiring 13, a fire in a
domestic grate14, water installations in a house15, the ordinary working of mines and
minerals on land16, trees planted or selfsowm (not poisonous17) have been held by the
courts as natural use of land.

It is also important to note that the rule of Ryland v. Fletcher applies to dangerous
things which an occupier brings on to his land and collects and keeps there and not to
those things which are automatically on the land by the act of nature. Moreover, what is
`nonnatural' varies from place to place and according to the circumstances. It is in this
context that a thing may be considered in India as "natural use of land", but the same
may be considered in England or elsewhere as "nonnatural use of land". For example,
construction or maintenance of tank for irrigation purposes is considered as "natural use
of land" in India; whereas in England it my not be considered as "natural use of land". A
case worth mentioning on the aforesaid points is that of N. Narayanan Bhattathiripad v.
TravancoreGovernment.18

________________________

1. See Mason v. Levy Auto Parts of England Ltd., (1967) 2 QB 530 where unreasonable risk or abnormal

risk in negligence cases has been equated with nonnatural user of land.

2. Here the court may determine "what ought not to be borne by the public" and "what is for public benefit"

by creating a balance on the basis of public policy. What may be regarded as dangerous or nonnatural may

vary according to the circumstances and public policy. See also, Newark, NonNatural user and Rylands v.

Fletcher, 1961 24 MLR 557.

3. Batcheller v. Tunbridge Wells Gas Co., (1901) 84 LT 765; See also, Bhopal Tragedy: where the storing of

poisonous gas in Union Carbide Company premises was held nonnatural use of land because it created

abnormal risk by special use of land. See author, Gas Tragedy and legal Remedy, supra.

4. National Telephone Co. v. Beaker, (1993) 2 Ch 186; Hillier v. Air Ministry, (1962) CLY 2084, where cows

were electrocuted by an escape of electricity from highvoltage cables laid under plaintiff's field. Held, he
 was liable under the rule of Rylands v. Fletcher.

5. See Winfield, pp. 382385.

6. Miles v. Forest Rock Co., (1919) 34 TLR 500.

7. West v. Bristol Tramways, (1908) 2 KB 14.

8. Hoaare & Co. v. Mc Alpine, 1923 11 Ch 167.

9. Crowwhurst v. Amersham Burial Board, 1878 Ex D 254.

10. Firth v. Bowling Iron Co., (1878) 3 CPD 254.

11. Attorney General v. Cory Bros., (1921) 1 AC 521.

12. Attorney General v. Corke, 1933 Ch 89.

13. Collingwood v. Home and Colonial Stores Ltd., (1916) 3 All ER 200.

14. Sochacki v. Lothian, 1947 1 All ER 200.

15. Rickards v. Lothian, 1913 AC 263.

16. Rouse v. Gravelworks Ltd., (1904) 1 KB 489.

17. Noble v. Harrison, (1926) 2 KB 332.

18. AIR 1956 Trav-Co 225.

The plaintiff was using a nearby stream as an outlet for the excess water collected in his
paddy lands. The State Government constructed a dam across the said stream for
storing the water to be used for irrigation purposes by the adjacent land owners
including the plaintiff. As a result of unusually heavy rainfall, the whole water could not
pass speedily through the sluices built in the dam with the result that the water spread
over the paddy lands of the plaintiff who suffered heavy losses. The plaintiff, therefore,
filed a suit against the government for damages caused by the dam under the rule of
strict liability. Apart from the defences of act of God and plaintiff's consent, the Court
held that the two essential conditions (i.e., escape and nonnatural use of land) were
missing in the case. The court said:

"It is a common ground that the dam in question was erected for the purpose of
storing water to be used for irrigating the paddy lands in the neighbourhood, to
enable the plaintiff and other agriculturists of the locality to raise a second crop
of paddy. This cannot be said to be a nonnatural or exceptional use of land.
Indian law has all along recognised the use of property as a reservoir of water
for irrigating purposes as a natural use essential to the welfare of the
 community."

After holding that it was a natural use of land in India, the court looked at the second
condition of "escape" and stated that "there was no complaint that the injury was
caused by the escape of water stored up or collected in the dam". Infact "water
collected in the plaintiff's paddy land as a result of the unusually heavy rains could not
speedily escape because of the dam that stood in the way."

Thus, it should be noted that a reservoir for irrigating purposes is considered as a

"natural use of land" in India. Moreover, water collected on the paddy land in the
present case was due to act of nature i.e., heavy rainfall. In another case of Kana Ram
Akhul v. Satidhar Chatterjee,1 the defendant lowered the level of their land to obtain
water from a nearby tank for cultivation. The water subsequently overflowed into the
adjoining lands of the plaintiff. It was argued by the plaintiff that defendants have no
right to bring water upon their land which subsequently flowed out and caused damage.
He, therefore claimed damages under the rule of Rylands v. Fletcher. Rejecting the
contention of the plaintiff, the court held that the rule of Rylands v. Fletcher, was not
applicable in the present case because the defendant had not used their land in any
artificial or unusual manner. It was within their right to obtain water from the tank for
cultivating the land. No recourse had been taken to construct artificial structure for
storing water.

Negligence of an independent contractor.—It has been seen in Rylands v. Fletcher,

that the defendants were held liable even though they were not negligent and had got
the job done from independent contractors. Similarly, in T.C. Balakrishnan Menon v.
T.R. Subramanian,2 the facts were that an explosive made out of a coconut shell filled
with explosive substance, instead of rising into the sky, ran at a tangent amidst the
crowd and exploded, causing injuries to the respondent. The question before the court
was whether the appellants, who had

___________________________

1. (1912) 15 IC (Cal) 543.

2. MANU/KE/0040/1968 : AIR 1968 Ker 151.

engaged an independent contractor to attend the exhibition of fire works, would be

liable. The Kerala High Court applied the rule laid down in Rylands v. Fletcher and held:
"The Minnal Gundu is an explosive and is therefore an "extrahazardous" object, and
persons who use such an object, which, in its very nature, involves special danger to
others, must be liable for the negligence of their independent contractor. The duty to
keep such a substance without causing injury to others is `nondelegable' duty: the
appellants could not have escaped liability for the breach of such a duty by engaging an
independent contractor."
2. Defences to the Rule (Exceptions to the Rule)

Apart from `natural use of land' and `nonescape of things from one land to
another', the following defences (or exceptions) to the rule have been
recognised by Rylands v. Fletcher and some later decisions.

2.1. Default of the plaintiff

In case the escape is solely due to plaintiff's own fault, it is a good defence in
Rylands v. Fletcher itself, and the plaintiff has no remedy for the damage caused
by that escape. For example, if the escape of water from Rylands' land would
have been due to the fault of Fletcher, he would not have succeeded for the
damage caused to his coal mines. Ponting v. Noakes1 illustrates this point. In
this case the plaintiff's horse reached over the defendant's boundary and nipped
some poisonous trees and died. It was held that the defendant was not liable,
for the damage was due to horse's own intrusion. Alternatively there was no
escape of the dangerous thing.

2.2. Consent of the plaintiff

Where the plaintiff has expressly or implied consented to the presence or

collection of a dangerous thing on the defendant's land, and if that thing escaped
and injured the plaintiff, the defendant would not be liable. Of course the escape
would not be due to his fault. This exception falls under the general defence of
the maxim `volenti non fit injuria' i.e. voluntarily suffered injury is not fit for
action. Thus, for example, in N. Narayanan Bhattathiripad v. Travancore
Government2, it was held by the court that as the plaintiff had agreed to the
construction of the dam, he cannot later on turn round and complain that the
presence of the dam has been a source of injury to his property.

2.3. Common benefit

Where dangerous thing is maintained on defendant's land for the benefit of the
plaintiff and the defendant, the defendant is not liable for its escape and
consequent injury to the plaintiff. Thus, in Carstairs v. Tylor, the defendant who
was the land lord of the plaintiff, and lived in the upper storey, maintained a
water box for the benefit of both. One day it leaked without the negligence of
the defendant (because the rat gnawed the hole in the box) and damage the
plaintiff's goods. It was held that since water was being used by the plaintiff and
the defendant (common benefit), the defendant would not be liable. Similarly, in

________________________

1. (1894) 2 QB 281; see also Cheater v. Cater, (1918) 1 KB 247.

 2. AIR 1956 Trav-Co 225.

N. Narayanan Bhattathirpad v. Travancore Government1, although the case was

dismissed on the ground of natural use of land and nonescape of water, but the
court observed that alongwith other agriculturists the plaintiff too was benefited
by the dam. The defence of `common benefit' was, thus, available to the
defendant.

2.4. Act of stranger

The rule of Rylands v. Fletcher does not apply where the escape of dangerous
thing was caused by a stranger over whom the defendant has no control. Thus,
the plaintiff could not succeed in his claim in Rickards v. Lothian 2, where some
stranger deliberately blocked up the wastepipe of a lavatory in the defendant's
premises, thereby flooding the plaintiff's premises.

2.5. Act of God

This exception was recognised by Blackburn J., in Ryland v. Fletcher itself.

Where a thing escapes from the defendant's land due to unanticipated act of
nature and it is practically impossible for the defendant to prevent it, the
defence of act of God applies and the plaintiff cannot recover for the damage
caused by that escape. A beautiful illustration on this point is the case of Nichols
v. Marsland3 where Nichols was the surveyor of some county bridges for Chesire.
Marsland was the owner of an estate containing three lakes of ornamental water
fed by a natural stream passing through the estate. A very heavy unprecedented
rainfall caused the lakes to swell to such an extent that it broke down the
artificial embankments of the lakes and the rush of escaping water carried away
four bridges of the county. It was held by the court of Exchequer Chamber that
the defendant was not liable without negligence, for the escape of water was
owing to the Act of God.4

2.6. Statutory authority

If the defendant has been authorised by a law or a statute to bring or collect

dangerous things on his land, he would not be liable if the dangerous thing
escapes and causes damage to plaintiff. But he will lose his defence if negligence
on his part is proved. For instance, in Green v. Chelsea Waterworks Co.,5 a main
pipe belonging to the defendant's company burst and the water entered the
property of the plaintiff. It was held by the court that the company was not
liable without negligence because it was authorised by the statute to lay the
main pipe.

An important Indian case decided by the Privy Council in 1875 is that of Madras
Railway Company v. Zamindar of Carvatenagram. 6 There were two tanks on the
 land of the defendant in a hilly district of Carvatenagram. These were very
ancient tanks and were constructed in the usual manner The banks of these
tanks were properly attended and kept in repair. These tanks were the source of

________________________

1. AIR 1956 Trav-Co 225.

2. 1913 AC 763.

3. (1876) 2 Ex D 1.

4. See in detail under the Chapter, General Defences, supra.

5. (1874) 70 LT 547.

6. 1874 IA 364.

irrigation for cultivation in that district and were being used by the cultivators
from time immemorial. Due to unusual rainfall the banks of the tanks were
overflowed and burst and the escaping water damaged the property of the
plaintiff's railway company. It was argued on behalf of the plaintiff's that the
principle enunciated in the case of Rylands v. Fletcher, be extended to this case.
It was rejected by the Privy Council on the ground "that the circumstances of the
present case are essentially distinguishable" from Rylands' case. Lord Granworth
observed:

"The tanks are ancient, and formed part of what may be termed a
national system of irrigation, recognised by Hindus and Mohammedan
law, by regulations of the East India Company, and by experience older
than history, as essential to the welfare, and, indeed to the existence of a
large portion of India. The public duty, of maintaining existing tanks ....
was originally undertaken by the Government of India, and upon
settlement of the country has devolved on zamindars, of whom the
defendant is one. The zamindars have no power to do away with these
tanks, in the maintenance of which large number of people are
interested, but are charged under Indian law, by reason of their tenure,
with the duty of preserving and repairing them. From this statement of
facts ... the defendant in this case is in a very different position from the
defendants in Rylands v. Fletcher."

"In that case the defendants, for their own purposes, brought upon their land
and there accumulated a large quantity of water by what is termed by Lord
Cairns "a nonnatural use" of their land. They were under no obligation, public or
private, to make or to maintain the reservoir: and no rights in it had been
 acquired by other persons, and they could have removed it if they had thought
fit. The rights and liabilities of the defendant appear to their Lordships much
more analogous to those of persons or corporations on whom statutory powers
have been conferred and statutory duties imposed. The duty of the defendant to
maintain the tanks appears to their Lordships a duty of very much of the same
description as that of a railway company to maintain their railway (Vaughan v.
Taff Vale Railway Company, 5 H&N 679), and they are of opinion that, if the
banks of his tank are washed away by an extraordinary flood without negligence
on his part, he is not liable for damage occasioned thereby."

2.7. Act of State

The plaintiff cannot recover damages if a thing escapes from the defendant's
land on to the plaintiff's land due to act of State.1

3. Absolute Liability: A new development in India

3.1. Rule in M.C. Mehta v. Union of India

On 1st January, 1987 an important development took place in India when

Bhagwati C J., in the case of M.C. Mehta v. Union of India,2 revolutionised the
law

________________________

1. See `act of State' under the Chapter, General Defence, supra.

2. Judgement Today, Vol. 1, No. 1, Jan. 1, 1987: MANU/SC/0092/1986 : AIR 1987 SC 1086.

of strict liability. He did not follow the principles laid down in the case of Rylands
v. Fletcher,1 on the ground that those principles are not in keeping with the
present day jurisprudential thinking.

The facts were that there was escape of Oleum gas from one of the units of
Shriram Food & Fertiliser Industries (hereinafter referred to as Shriram) on 4th
& 6th December, 1985. The Delhi Legal Aid and Advice Board and the Delhi Bar
Association filed applications for award of compensation to the persons who had
suffered harm on account of escape of Oleum gas.

The question before the Court was as to what is the measure of liability of an
enterprise which is engaged in an hazardous or inherently dangerous industry, if
by reason of an accident occurring in such industry, persons die or are injured.
Does the rule in Rylands v. Fletcher apply or is there any other principle on
which the liability can be determined?

It was held by the Court that the rule in Rylands v. Fletcher, was evolved in the
 year 1868 and it cannot be followed in a modern industrial society with highly
developed scientific knowledge and technology where hazardous or inherently
dangerous industries are necessary to carry as part of the development
programme.

It was stated by Bhagwati, C.J:

"This rule evolved in the 19th Century at a time when all these
developments of science and technology had not taken place. It cannot
afford any guidance in evolving any standard of liability consistent with
the constitutional norms and the needs of the present day economy and
social structure. We need not feel inhibited by this rule which was
evolved in the context of a totally different kind of economy. Law has to
grow in order to satisfy the needs of the fast changing society and keep
abreast with the economic developments taking place in the country. As
new situations arise, the law has to be evolved in order to meet the
challenge of such new situations. Law cannot afford to remain static. We
have to evolve new principles and lay down new norms which would
adequately deal with the new problems which arise in a highly
industrialised economy. We cannot allow our judicial thinking to be
constricted by reference to the law as it prevails in England or for that
matter in any other foreign country. We no longer need the crutches of a
foreign legal order. We are certainly prepared to receive light from
whatever source it comes, but we have to build up our own jurisprudence
and we cannot countenance an argument that merely because the new
law does not recognise the rule of strict and absolute liability in case of
hazardous or dangerous, substances, ... liability or the rule as laid down
in Rylands v. Fletcher, as is developed in England recognises certain
limitations and responsibilities. We, in India cannot hold our hands back
and I venture to evolve a new principle of liability which English courts
have not done. We have to develop our own law and if we find that it is
necessary to construct a new principle of liability to deal with an unusual
situation which has arisen and which is likely to arise in future

___________________________

1. Judgment Today, Vol. 1, No. 1, Jan. 1, 1987: MANU/SC/0092/1986 : AIR 1987 SC 1086.

on account of hazardous or inherently dangerous industries which are

concomitant to an industrial economy, there is no reason why we should
hesitate to evolve such principle of liability merely because it has not
been so done in England. We are of the view that an enterprise which is
engaged in a hazardous or inherently dangerous industry which poses a
potential threat to the health and safety of the persons working in the
 factory and residing in the surrounding areas owes an absolute and
nondelegable duty to the community to ensure that no harm results to
anyone on account of hazardous or inherently dangerous nature of the
activity which it has undertaken. The enterprise must be held to be under
an obligation to provide that the hazardous or inherently dangerous
activity in which it is engaged must be conducted with the highest
standards of safety and if any harm results on account of such activity,
the enterprise must be absolutely liable to compensate for such harm and
it should be no answer to the enterprise to say that it had taken all
reasonable care and that the harm occurred without any negligence on its
part. Since the person harmed on account of the hazardous or inherently
dangerous activity carried on by the enterprise would not be in a position
to isolate the process of operation from the hazardous preparation of
substance or any other related element that caused the harm,...must be
held strictly liable for causing such harm as a part of the social cost for
carrying on the hazardous or inherently dangerous activity for its profit.
The law must presume that such permission is conditional on the
enterprise absorbing the cost of any accident arising on account of such
hazardous or inherently dangerous activity as an appropriate item of its
overheads... This principle is also sustainable on the ground that the
enterprise alone has the resource to discover and guard against hazards
or dangers and to provide warning against potential hazards. We would
therefore hold that where an enterprise is engaged in a hazardous or
inherently dangerous activity and harm results to anyone on account of
an accident in the operation of such hazardous or inherently dangerous
activity resulting for example, in escape of toxic gas, the enterprise is
strictly and absolutely liable to compensate all those who are affected by
the accident and such liability is not subject to any of the exceptions
which operate visa-vis the tortious principle of strict liability under the
rule in Rylands v. Fletcher.

We would also like to point out that the measure of compensation in the kind of
cases referred to in the preceding paragraph must be correlated to the
magnitude and capacity of the enterprise because such compensation must have
a deterrent effect. The larger and more prosperous the enterprise, the greater
must be the amount of compensation payable by it for the harm caused on
account of an accident in the carrying on of the hazardous or inherently
dangerous activity by the enterprise.

It would, thus, be seen that the existing rule of strict liability laid down in
Rylands v. Fletcher, in 1868 was found unsuitable to the modern industrial
society and, therefore, the Supreme Court made a new rule of absolute liability
which is very much different from the existing rule of strict liability.

Firstly, only those enterprises will be liable which are engaged in hazardous or
inherently dangerous activity: this would mean that those not failing under the
category of such enterprises will be outside the ambit of the rule where the rule
of Rylands v. Fletcher, will be still applicable. Secondly, the escape of a
dangerous thing from one's land to another is not necessary: this means that
the rule will not only be applied to those injured persons who are outside the
premises but also to those who are inside. Thirdly, the rule is without any
exception and fourthly, the quantum of damages depends upon the magnitude
and the financial capability of the defendant's enterprise. It is here the Supreme
Court veered away from the principles of tortious liability.1 The basic principle of
tortious liability is to redress the injury suffered by the plaintiff and, therefore,
the quantum of damages depends upon the loss suffered by the plaintiff. It is
therefore, suggested that the Supreme Court should review its decision on this
point.

It is interesting to note that the author in his earlier edition (1989) welcomed
the decision of the Supreme Court in M.C. Mehta's case, but pointed out that in
respect of award of damages, the Supreme Court veered away from the principle
of tortious liability by holding that the quantum of damages depends upon the
magnitude and the financial capability of the defendant's enterprise. 2 This view
of the author was also upheld by the Supreme Court in 1990 in the case of
Charan Lal Sahu v. Union of India3, where Misra C.J., expressed doubts as to
correctness of the view as to damages and stated that the view taken in M.C.
Mehta's case was obiter and was a departure from the law applied in western
countries. But the doubts expressed by Misra C.J., in Mehta's case have not
been accepted by the Supreme Court in Indian Council for Environment Legal
Action v. Union of India4, and it was held that the rule laid down in Mehta's case
was not obiter and was appropriate and suited to the conditions prevailing in our
country. This view of the Supreme Court, it is once again submitted, is not in
consonance with the principle of tortious liability because the basic principle of
tortious liability is to redress the injury suffered by the plaintiff and, therefore,
the quantum of damages depends upon the loss suffered by the plaintiff. It is
therefore suggested that the Supreme Court should review its decision on this
point.5

However, the case of Indian Council for Enviro-Legal Action v. Union of India, is
an important case on `environmental pollution' where the Supreme Court
followed its earlier decision of M.C. Mehta v. Union of India, imposing absolute
liability on enterprises carrying on hazardous and inherently dangerous activity.
The facts were that hazardous chemical industries had released highly toxic
 sludge and toxic untreated waste water which had percolated deep into the soil

___________________________

1. A similar approach was made by the House of Lords in Liesboach Dredger v. S.S. Edison, 1933 AC 448

which was subject to great criticism and was not followed later. (Discussed supra, see, `Remoteness of

damage' under chapter General Defences).

2. S.P. Singh Law of Tort, 2nd Edn., (1989), p. 264.

3. MANU/SC/0285/1990 : AIR 1990 SC 1480.

4. MANU/SC/1112/1996 : AIR 1996 SC 1446.

5. S.P. Singh Law of Tort, 2nd Edn., (1989), p. 264. See also, Liseboach Dredger v. S.S. Edison, 1933 AC

448 discussed supra under the heading `Remoteness of Damage'.

rendering the soil unfit for cultivation and water unfit for irrigation, human or
animal consumption resulting in untold misery to the villagers of surrounding
areas. A writ petition under Article 32 was filed before the Supreme Court for the
violation of fundamental right to life of the villagers under Article 21 of the
Constitution to compel the Government and the Pollution Control Board to
perform their statutory duties. The Supreme Court directed the Government to
determine and recover the cost of remedial measures from the private
companies which polluted the environment by attaching all their assets. It was
further held that the amount so recovered be utilized by the Ministry of
Environment and Forests, Government of India for carrying out all remedial
measures to restore soil, water sources and the environment of the affected
area to its former state. These industries were characterised by the Supreme
Court as `rogue industries' and were ordered to be closed down. While
recognising the principle of absolute liability in M.C. Mehta's case, the Supreme
Court held that the liability of the `rogue industries, was based on the principle
of "polluter pays."

In a different type of case, the Supreme Court in the case of M.P. Electricity
Board v. Shail Kumari,1 considered a plea for damages against the Electricity
Board when a cyclist was entrapped and electrocuted by a live-wire. The Board
tried to defend the plea was the ground that the wire was a diverted line laid by
a stranger to siphon energy. The court held that the responsibility to supply
electric energy in the particular locality is statutory, conferred on the Board. If
the energy so transmitted causes injury or death of a human being, who gets
unknowingly trapped into it, the primary liability to compensate the sufferer is
that of the supplier of the electric energy. So long as the voltage of electricity
transmitted through the wires is potentially of dangerous dimension, the
managers of its supply have the added duty to take all safety measures to
 prevent escape of such energy or to see that the wire snapped would not remain
live on the road, as users of such road would be under peril. The court further
observed that a person undertaking an activity involving hazardous or risky
exposure to human life, is liable under law of torts to compensate for the injury
suffered by any person, irrespective of any negligence or carelessness on the
part of the managers of such undertakings. The basis of such liability is the
foreseeable risk inherent in the very nature of such activity.

In Mushtaq Ahmed v. State of Jammu and Kashmir, 2 the respondent State has
denied its negligence in maintaining electricity wire and the victims fault in being
electrocated has also not been established. The court held that State being
engaged in undertaking the activity of supplying electric energy which if not
properly controlled would result in risky exposure to human life, it is liable under
the law of Torts to compensate the petitioners for the death of the victim
irrespective of any negligence or carelessness on their part. The basis of such
liability is the foreseeable risk inherent in the very nature of such activity. The
liability cast on the State in law, would lie within the parameters of "Strict
liability".

In a recent case of Joginder Singh v. State of Jammu and Kashmir,3 an

important development took place the court held that the extraordinary writ
jurisdiction cannot be exercised when civil rights of parties are involved and
facts are disputed, but such norms would not be attracted in a case of "strict
liability". Further merely on basis of plea of disputed questions of fact, the
petition cannot be dismissed. Each individual case has to be tested on
touchstone of doctrine of "strict liability" on its own facts and after taking into
consideration averments and documentary evidence.

—————

_________________________

1. JT 2002 (1) SC 50. See also, ILI, Newsletter, Vol. II, Issue 1, JanuaryMarch, 2002.

2. AIR 2009 J&K 29.

3. AIR 2011 J&K 130.

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CHAPTER 23
LIABILITY FOR DANGEROUS ANIMALS

SYNOPSIS

1. Introduction

2. Cattle Trespass

2.1. Scienter Rule

2.2. Animals Act, 1971

2.3. Cattle Trespass Act, 1871

1. Introduction

A keeper of an animal is strictly liable, independently of negligence, for damage done by

the animal belonging to dangerous specie (ferae naturae), or if he knew the vicious
character of the animal belonging to nondangerous specie (mansuetoe naturae). The
animals falling in the first category (ferae naturae) are lion, bear, wolf, ape, elephant
etc.; whereas animals in the second category (mansuetoe naturae) are dog, horse, cow,
rams, cat etc. The liability for both the types of animals have been very beautifully
illustrated by Devlin J., in Behrens v. Bertram Mills Circus, Ltd.1

A person who keeps an animal with knowledge of its tendency to do harm is strictly
liable for damage that it does if it escapes; he is under an absolute duty to confine or
control it so that it shall not do injury to others. All animals ferae naturae, that is all
animals which are not by nature harmless, or have not been tamed by man and
domesticated, are conclusively presumed to have such a tendency, so that the scienter
need not in their case be proved. All animals in the second class, mansuetae naturae,
are presumed to be harmless until they have manifested a savage or vicious propensity;
proof of such a manifestation is proof of scienter and serves to transfer the animal, so
to speak, out of the natural class into the class feare naturae.2

Thus, in the above case, the circus owners, even without negligence, were held liable
when their Burmese elephant frightened by the barking of a small dog, ran after the
dog and knocked the plaintiff who was inside the booth. In May v. Burdett,3 the
defendant was held liable for keeping a monkey which bit the

___________________

1. (1857) 1 All ER 583.

2. Ibid., p. 587.

3. (1846) 9 QB 101.
plaintiff on the ground that the monkey is dangerous animal. In Hudson v.
Roberts,1 where the defendant had the knowledge that the bull always irritates from red
colour, was held liable when the bull attacked the plaintiff who was wearing the red
handkerchief and was walking on the highway. In Read v. Edwards 2, the defendant
having knowledge of peculiar propensities of his dog in chasing and destroying the
pheasants, was held liable to the plaintiff when the dog chased and destroyed his
pheasants.

The conclusion boils down to the fact that there is no difficulty if the animal belongs to
the category of `ferae naturae' (e.g., lion). The keeper shall be liable strictly for the
damage done by it even though he is not at fault. But the difficulty arises in those cases
where the animal belongs to the category of `mansuetoe naturae' (e.g., ass, cow,
rams). In such a case if the animal has some dangerous propensities, it will be
transferred in the category of `ferae naturae'. Here the keeper will be liable strictly,
independently of negligence, if the plaintiff proves scienter i.e., the defendant had the
knowledge of the dangerous propensities of such animal.

2. Cattle Trespass

2.1. Scienter Rule

In case of cattle trespass and consequent natural damage, or any other damage
due to particular vicious propensities of the cattle, the liability is strict and the
owner of the cattle will be liable even if he did not know of any other particular
propensities in that animal. There is no need to prove the negligence of the
defendant as the liability is strict i.e., without fault. It may be noted that cattle
includes cow, ass, pigs, horse, bull, sheep and poultry.3 But dog and cat are not
included in the term, cattle because of their tendency and therefore, there
cannot be cattle trespass by cats and dogs. Thus, in Buckle v. Holmes, 4 the
defendant's cat strayed into the plaintiff's house where it killed thirteen pigeons.
The defendants was not held liable for trespass. He was also not liable for killing
the pigeons because there was nothing peculiar to this cat alone. The liability
under the scienter rule arises only when the defendant had knowledge. For
example, a cat is prone to injure mankind. In such a case, knowledge (i.e.,
scienter) of the defendant that the cat was prone to injure mankind must be
established by the plaintiff and, for this, a single instance of the ferocity of such
animal is sufficient notice. Thus in Read v. Edwards5, the owner of a dog was
held liable for his dog's act of trespassing, chasing and killing certain pheasants
which belonged to the plaintiff on the ground that the defendant had knowledge
of the particular propensity of his dog.

____________________
 1. (1851) 6 Ex 697.

2. (1864) 17 CBNS 245.

3. Poultry means the domestic varieties of fowles, turkey, geese, ducks, gunea-fowles, pigeons, peacocks

and quails.

4. (1926) 2 KB 125.

5. (1864) 17 CBNS 245.

But where there is a trespass by cattle the liability is strict. Scienter or

negligence of the owner is not required to be proved. In Ellis v. Loftu Iron
Co.,1 the defendant's horse obtruded its head and feet over the plaintiff's fence
(which was a technical trespass) and bit and kicked the plaintiff's mare. The
defendant was held liable for cattle trespass because the liability is strict, and
the plaintiff was not required to prove scienter or negligence of the defendant.

It may be noted that the defendant will be liable for the natural consequence of
cattle trespass. In Theyer v. Purnell,2 the defendant's sheep infected with scab
trespassed on to the plaintiff's land conveyed the same to the plaintiff's sheep.
All these sheep were interned under a government order and plaintiff was put to
a considerable expense. Defendant was held liable for cattle trespass and its's
natural consequences irrespective of his knowledge as to the infected condition
of the sheep. Similarly, in Wormald v. Cole,3 the plaintiff was knocked down and
injured by the trespassing heifer belonging to the defendant. It was held by the
court that the personal injuries to the plaintiff were the direct result of the
trespass and defendant was held liable for the same.

2.2. Animals Act, 1971

Now, in England, the Animals Act of 1971 has modified the common law by
dividing the animals into two groups `dangerous' and `non-dangerous', which
more or less follows the distinction between `ferae naturae' and `mansuetae
naturae'. Section 6(2) of the Animals Act defines dangerous animals as "not
commonly domesticated" and when fully grown can cause severe
damage.4 When damage is caused by a dangerous animal, its keeper is strictly
liable. But when damage is caused by a non-dangerous animal, section 2(2) of
the Act requires the plaintiff to prove that the defendant had knowledge of
certain abnormal characteristics for holding the defendant liable.

In England, the common law rule of Cattle Trespass has been replaced by the
Animal Act, 1971. Section 4(1) of the Act, provides that where livestock
belonging to some person strays on to the land or property of another and
causes damage to land or property on it which is in the ownership or possession
 of another and/or that person incurs expenses in keeping the livestock while it
cannot be restored to the person to whom it belongs, the owner of the livestock
is liable for the damage and expenses except as otherwise provided by the Act.

_________________________

1. 1874 LR 10 CP 10; See also, Lee v. Riley, (1856) 18 CB (NS) 722; Manton v. Brocklebank, (1923) 2 KB

212, where the owner of a mare was not liable for injury to the plaintiff's horse as there was no trespass.

2. (1918) 2 KB 333.

3. (1954) 1 QB 614; see also, Cox v. Burbidge, (1963) 13 CB (NS) 430, where a child was kicked and

injured by the defendant's horse, who trespassed on the highway. It was held that he was not liable as the

child was neither owner nor occupier but only user. Scienter or negligence of defendant could not be

proved.

4. Section 6(2) provides: `A dangerous species is a species—(a) which is not commonly domesticated in

British Island, and (b) whose fully grown animals normally have such characteristics that they are likely,

unless restrained, to cause severe damage or that any damage they may cause is likely to be severe.

The common law remedy i.e., distress damage feasant is abolished. In its place
section 7 of the Animals Act provides a right to detain the livestock and to sell it
at the end of fourteen days. The ancient right of non-liability of the cattle owner
if his cattle trespasses to a highway and causes damage has been retained in
section 2 of the Act. Similarly, section 5 of the Act recognises the well-
established law laid down in Tellet v. Ward,1 that the occupier of premises
adjoining a highway is presumed to have accepted the risks incidental to the
passage of ordinary traffic along that highway.

2.3. Cattle Trespass Act, 1871

In India, Cattle Trespass Act, 1871, provides that the trespassing cattle can be
taken to the pounds established in various places for keeping such cattle. The
owner of the cattle can take them back from the pound keeper after payment of
pound fees. However, he is not bound to pay any compensation to the owner of
the land. The owner of the pig which strays and does harm to another's land is
liable to pay fine. According to Cattle Trespass Act, 1871, cattle includes
elephants, camels, buffaloes, horses, ponies, mares, geldings, colts, fillies,
mules, asses, pigs, rams, ewes, sheep, lamb, goats and birds.

The cultivator or occupier of the land or vendee or mortgagee of the crop may
seize any cattle trespassing on such land and doing damage to any crop or
produce and send the cattle within 24 hours to the pounds. There are other
provisions with regard to delivery and sale of cattle, illegal seizure, detention,
 payment of penalties etc. in the Act.

In the States, there are similar provisions with slight modifications as in the
Cattle Trespass (Andhra Pradesh Extension and Amendment) Act, 1956; Cattle
Trespass (Bombay Extension and Amendment) Act, 1959; Madhya Pradesh
(Extension of Law) Act 23 of 1958; Tamil Nadu Act, 56 of 1959; Kerala Cattle
Trespass Act, 1961; Mysore Cattle Trespass Act, 1966, etc. Cattle damaging
public roads, canal and embankments are also liable to be seized by the police
officers or other concerned officers and sent to pounds.

There are several defences viz., (a) act of third party i.e., the act of a stranger,
(b) default of the plaintiff i.e., failure to fence a haystack or property may
disentitle the plaintiff, (c) volenti non fit injuria i.e., consent (d) act of God. (This
has been abolished in England) (e) inevitable accident (It may be a good
defence after the decision of Stanley v. Powell2, (f) destraint i.e., the animal can
be seized and detained till compensation is paid. This has now been abolished in
England after passing the Animals Act, 1971, (g) tender of amends i.e., the
owner of the trespassing cattle may make amends by tendering some amount as
a compensation.

____________________

1. (1882) 10 QBD 17.

2. (1891) 1 QB 86.

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CHAPTER 24

MALICIOUS PROSECUTION

SYNOPSIS

1. Introduction

2. Essential conditions

2.1. Prosecution

2.2. Prosecution of plaintiff by the defendant

2.3. Termination of proceedings in plaintiff's favour

 2.4. Without reasonable and probable cause

2.5. Prosecution by the defendant with malice

2.6. Damage

3. Distinction between false imprisonment and malicious prosecution

1. Introduction

Every person has the freedom to bring criminals to justice. But this does not mean that
any innocent person should be brought to justice unnecessarily. It is in order to check
false accusation of innocent persons that the tort of Malicious Prosecution came into use
during the reign of Elizabeth I. In the beginning the principles were uncertain and,
therefore, a just accuser was deterred in instituting criminal proceedings against a
person because of fear of damages for malicious prosecution. However, in 1698 in the
case of Saville v. Roberts,1 Chief Justice Holt clearly and firmly laid down the principles
on which a suit for malicious prosecution can be instituted. Of course, the rules are such
and the burden of proof upon the plaintiff is so heavy that no honest prosecutor (who is
a private citizen) is ever likely to be deterred by it from doing his (social, moral or
optional legal) duty. But on the other hand, the law is so much in favour of the accuser
that it is too difficult for the innocent to obtain redress.2 Accordingly, the case law is
very scanty. However, in every action for malicious prosecution it is essential for the
plaintiff to prove damage. In Saville v. Roberts,1 Holt C.J., classified damage for the
purpose of this tort. He said whenever malicious prosecution results in damage to (a)
man's fame, or (b) the safety of his person, or (c) the security of his property, he can
institute civil action for malicious prosecution.

___________________

1. 1 Ld Raym 374.

2. This law is open to criticism, See Fridman Compensation of the Innocent, (1963), 26 Modern Law

Review, 481.

It would thus be seen that whenever a person is prosecuted on a criminal charge or any
other charge reflecting his character, a moral stigma is generally attached to his fame,
thus, making his case fall under Holt C.J.'s first head i.e., man's fame. He has to contest
his case in the court against malicious prosecution which necessarily entails a lot of
expenditure, thus, making his case fall under Holt C. J.'s third head i.e., security of his
property. So, whenever a person is maliciously prosecuted by another without any
reasonable cause, and the court acquits him as an innocent person, he has a remedy in
tort for the damage suffered by him due to such prosecution.

This may be better explained through an example. Suppose, A maliciously and without
any reasonable cause, prosecuted B for theft. B was acquitted by the court as an
innocent person. Whether B has got any remedy against A for lowering down his fame
and the losses suffered in defending himself? B has a remedy against A in law of tort for
this type of malicious prosection if he proves1 that (a) he was prosecuted by the
defendant, (b) the prosecution ended in his (plaintiff's) favour, (c) the defendant
prosecuted him without any reasonable and probable cause, (d) the defendant
prosecuted him with malicious intention and (e) he suffered damage as a result of such
prosecution.

The essential conditions for the tort of malicious prosecution are discussed below:

2. Essential conditions

The first condition is that the plaintiff was prosecuted by the defendant.

This essential condition requires the plaintiff to prove that (i) he was prosecuted, and
(ii), the defendant prosecuted him.

2.1. Prosecution

Prosecution means to set the law in motion against another person. And it can
be set in motion when an appeal is made before a person clothed with judicial
authority. Thus, prosecution normally means criminal proceedings and not civil
proceedings. But for the purpose of this tort it also includes any other
proceeding which reflects plaintiff's honour or character e.g., liquidation or
bankruptcy proceedings. The question is at what stage the prosecution
commences? It is a settled law that it does not commence when a complaint is
made to the police authorities and the police starts its proceedings. An
illustration2 on this point is the case of Bolandanda Pemmayya v. Ayaradara.3

The facts were that the defendant lodged a complaint in the police station
alleging that the plaintiff had committed theft in his house. The Subinspector of
that police station called both, the plaintiff and, defendant and recorded their
statements. The Subinspector also made a search of the plaintiff's house.

________________________

1. See, Balbhaddar Singh v. Badri Sah, AIR 1926 PC 46; G.J. Khona v. K. Damodaran, AIR 1970 Ker 234;

Ramesh Chandra v. Jagannath, AIR 1975 Ori 124.

2. The others are, Bolandanda Pemmayya v. Ayaradara, AIR 1966 Mys 13; Gaya Prasad v. Bhagat Singh,

ILR (1908) 30 All 525; Clarke v. Boston, (1834) 6 Car & P 423; Crowdy v. Reilly, (1926) 17 CWN 554;

Nagendra Nath Ray v. Basanta Das Bairagya, ILR 1929 Cal 25.

3. AIR 1966 Mys 13.

Thereafter, finding the complaint as false, the Sub-Inspector filed his report. The
plaintiff filed a suit for damages against the defendant in the civil court for
malicious prosecution. Rejecting the contention of the plaintiff, the court held
that mere filing of a complaint before the police does not amount to prosecution.
It starts when some judicial authority is set in motion as a consequence of such
complaint. The suit of the plaintiff was, therefore, dismissed by the court.

The question, therefore, arises at what stage the prosecution commences before
the Judicial authority. There are two views on this point.

One view is that the prosecution commences as soon as the complaint is made
or charge is laid before the judicial authority. It is not necessary that the charge
should have been acted upon and process issued by the Judicial authority.1

The other view is that the prosecution commences not at the stage when the
complaint is made or charge is laid before the judicial authority, but at the stage
when some process has been issued by such authority for the plaintiff to appear.

The second view has been followed by the majority of the courts in India. 2 The
relevant case on this point is of Mohd. Amin v. Jogender Kumar Banerji, 3 where
the Privy Council stated that prosecution commences at the stage where plaintiff
suffers damage; and the plaintiff suffers damage when some process is issued
by the judicial authority to appear before it.

The facts of the case were that the plaintiff agreed to sell certain property to a
company to be formed by the defendant, but later on refused to sell it. The
defendant lodged a complaint for cheating against the plaintiff. The Magistrate
after examining the complainant on oath, held an enquiry in the open court
under section 202 of the Criminal Procedure Code, 1898. The Magistrate issued
a notice of enquiry to the plaintiff and the plaintiff appeared before him
alongwith a lawyer. Thereafter, the Magistrate dismissed the complaint as a
result of preliminary enquiry. The plaintiff, then filed a suit for damages against
the defendant for malicious prosecution. It was held by the Privy Council that
"the action for damages for malicious prosecution is part of the common law of
England, administered by the High Court at Calcutta. The foundation of the
action lies in abuse of process of the court by wrongfully setting the law in
motion and it is designed to discourage the perversion of the machinery of
justice for an improper purpose." The word `prosecution' in the title of the
action is not used in the technical sense which it bears in criminal law is shown
by the fact that the action lies for the malicious prosecution of certain classes of
civil proceedings, for instance, falsely and maliciously presenting a petition in
bankruptcy or a petition to wind up a company. After stating the basis for the
tort of malicious prosecution, Sir John Beaumont, J., of the Privy Council laid
down the principle of determining the stage at which prosecution commences.
 He stated that:

__________________

1. Balbhaddar Singh v. Badri Sah, AIR 1926 PC 46.

2. D.S. Rattanji v. Bombay Municipality, MANU/MH/0106/1944 : AIR 1945 Bom 320; D. Pandurang

v. Hari Keshav, AIR 1949 Bom 100; S.T. Saheb v. H.G. Saheb, MANU/TN/0259/1957 : AIR 1957

Mad 646; Pandurang v. Dhondiba, (1963) 1 Mys LJ 292.

3. AIR 1947 PC 108.

"To find an action for damages for malicious prosecution based upon
criminal proceedings, the test is not whether the criminal proceedings
may be correctly described as prosecution; the test is whether such
proceedings have reached a stage at which damage to the plaintiff
results. In this case the Magistrate took cognizance of the complaint,
examined the complainant on oath, held an enquiry in open court under
section 202 which the plaintiff attended and, at which the learned judge
had found he incurred costs in defending himself. The plaint alleged the
institution of criminal proceedings of a character necessarily involving
damage to reputation and gave particulars of special damage alleged to
have been suffered by the plaintiff. Their Lordships think that the action
was well founded, and on the findings at the trial the plaintiff is entitled
to judgement."

Thus, in criminal proceedings, malicious prosecution commences, when such

proceedings have reached a stage at which damage to the plaintiff results. This
rule has been extended to the proceedings before the quasi judicial authorities,
like Bar Council of India, Medical Council of India etc. Thus in a case of Kapoor
Chand v. Jagdish Chand1, the defendant made a complaint to the Board of
Ayurvedic and Unani System of Medicines, that the plaintiff, who was practising
as a Hakim, had obtained fictitious certificates of Hikmat by forged means and
that he was illiterate. The Board called the plaintiff, made enquiries and found
that he was admittedly a qualified Hakim. The court held that proceedings before
the Board amounted to prosecution and that the plaintiff was entitled to
compensation.2

2.2. Prosecution of plaintiff by the defendant

It is for the plaintiff to prove that the defendant instituted the prosecution
against him. The person who prosecuted the plaintiff is known as prosecutor or
defendant? Who is then a prosecutor? Prosecutor is a person who is actively
instrumental in putting the law in force.3 It follows that if a person does not file a
complaint himself but through the instrumentality of an agent or counsel, he will
 be termed as a prosecutor. Thus, a private person at whose instance and report
the prosecution is launched by the police, is a prosecutor.4 But where the
defendant simply gave an account of honest suspicion about the plaintiff to the
police and the police without any further enquiry started a case against the
plaintiff, then he is not a prosecutor. Instigating a Prosecution is different from
the act of giving information on the basis of honest suspicion5. However, if the
story told is false to the knowledge of the teller, and the prosecution is launched
by the police without further investigation, he will be a prosecutor1. If a person

___________________

1. AIR 1974 P&H 215.

2. See also, D.N. Bandopadhyaya v. Union of India, AIR 83, where Rajasthan High Court held that

departmental enquiry conducted by the disciplinary authority does not amount to prosecution.

3. Dandy v. Beardsley, (1880) 43 LT 603.

4. Gaya Prasad v. Bhagat Singh, ILR (1908) 30 All 525 PC. The Privy Council stated that the conduct of the

complainant before and after the complaint has to be seen in order to ascertain whether he was actively

involved in getting the plaintiff prosecuted.

5. R. Dayal v. Kallu, 1940 All 231; Gaya Prasad v. Bhagat Singh, Ibid.

simply goes as a witness, he cannot be termed as a prosecutor. Thus, to

determine the defendant as a prosecutor, depends on the facts of each case. Of
course, it is to be determined on the basis of principle that a prosecutor is a
person who is actively instrumental in putting the law in force or, in other words,
he is a person who instigated the proceedings against the plaintiff and made his
best efforts to secure the conviction of the plaintiff. 2 Thus, in T.S. Bhatta v. A.K.
Bhatta,3 the defendant filed a complaint against the plaintiff. Thereafter he was
not quiescent and moved the Sessions Judge in revision. He got himself
examined as a witness. He also impleaded himself in the criminal revision before
the High Court. The defendant knew that the charge was false and that he was
acting without reasonable cause. The defendant was held to be a real prosecutor
and was liable for malicious prosecution.

2.3. Termination of proceedings in plaintiff's favour

We have seen above that the plaintiff must prove that he was prosecuted by the
defendant. If this prosecution would have resulted in plaintiff's conviction, no
suit would lie against the defendant. But where the prosecution ended in favour
of the plaintiff, he has a cause of action against the defendant for such
prosecution. Accordingly, the plaintiff must show that the prosecution ended in
his favour. The prosecution ends in plaintiff's favour when he shows that (a) he
 was acquitted by the court either on merit4 or on technical grounds5, or (b) his
conviction was quashed or set aside by the appellate court6, or (c) his
prosecution was discontinued or withdrawn by the defendant.

2.4. Without reasonable and probable cause

It is difficult to distinguish "reasonable" from "probable." There appears to be no

distinction between these two words. The conjunction of these two adjectives is,
therefore, redundant. However, it appears that customary practice is more
powerful than logic and therefore this phrase "reasonable and probable" is being
followed, not only in England, but in all the countries following common law.

This is the third essential condition for the plaintiff to prove that the defendant
prosecuted him without any reasonable and probable cause. The question which
arises is that what is the meaning of "reasonable and probable" cause?
"Reasonable and probable cause" has been defined by Hawkins J. in Hicks v.
Faulkner1 in these words: "an honest belief in the guilt of the accused based

_________________

1. Gaya Prasad v. Bhagat Singh, ILR (1908) 30 All 525 (PC).

2. Balbhaddar v. Badri Sah, AIR 1926 PC 46; D.P. Dattar v. Hari Keshav, AIR 1949 Bom 100; Pannalal v.

Shrikrishna, AIR 1955 MB 124; Gaya Prasad v. Bhagat Singh, ILR (1908) 30 All 525 (PC); Kedar Nath v.

Brahmanand, AIR 1959 Raj 37; H. Singh v. J. Singh, AIR 1973 Raj 824.

3. MANU/KE/0021/1978 : AIR 1978 Ker 111.

4. Berry v. B.T.C., (1962) 1 QB 305.

5. Wicks v. Fentham, (1791) 4 TR 247; Jones v. Fwynn, (1712) 10 Mod 214.

6. See, Herniman v. Smith, 1938 AC 305. But in Reynolds v. Kennedy, (1784) 1 Wils 232, the defendant

was acquitted by the appellate court. In an action by the plaintiff, the court held that conviction by the trial

(lower) court indicates reasonable and probable cause on the part of the defendant. Held not liable. See

criticism, Winfiled, op. cit., p. 80. It should not be regarded as a good law.

upon a full conviction, founded upon reasonable grounds, of the existence of a

state of circumstances, which, assuming them to be true, would reasonably lead
any ordinarily prudent and cautious man placed in the position of the accuser, to
the conclusion that the person charged was probably guilty of the crime
imputed."

Thus, in brief, we may say "reasonable and probable cause" means honest belief
in the guilt of the accused based upon reasonable grounds. It follows that mere
suspicion is not enough. The above definition of Hawkins J., in Hicks v. Faulkner,
 has also been adopted in India by the Orissa High Court in the case of Jogendra
v. Lingraj,2 where, apart from the definition, an important question was that
whether in every case plaintiff is required to prove that the defendant
prosecuted him "in the absence of reasonable and probable cause." The court
pointed out one exception to this rule by distinguishing "acquittal on merits" and
"acquittal on benefit of doubt3." The Court said in both the types of acquittals,
plaintiff has to prove defendant's lack of "reasonable and probable cause 4," but
where "the accusation against the plaintiff purports to be in respect of an offence
which the defendant claimed to have seen him commit, and the trial ends in an
acquittal on the merits, the presumption will be not only be that plaintiff was
innocent, but also there was no reasonable and probable cause for the
accusation."

It would thus be seen that normally the plaintiff has to prove that the defendant,
without reasonable and probable cause, prosecuted him, but there is one
exception to this rule i.e., where the defendant claims to have seen the plaintiff
committing the crime, and the trial ends in acquittal on merit. The presumption
in such cases will be that there was no reasonable and probable cause for his
prosecution. In such a case the plaintiff will not be required to prove that the
defendant prosecuted him without reasonable and probable cause. "Reasonable
and probable cause" has already been explained above. It means honest belief
in the guilt of the accused based upon reasonable grounds. The honest belief
should not be of the defendant, but of a reasonable, prudent and cautious man
placed in the position of the defendant. A few cases may be cited as illustrations.

_____________________

1. (1878) 8 QBD 167 (171). This definition was approved and adopted by the House of Lords also in the

case of Herniman v. Smith, 1938 AC 305 (316), per Lord Atkin.

2. MANU/OR/0036/1970 : AIR 1970 Ori 91. The facts were that the plaintiffs belonging to Brahmin

Nijog had office on a plot adjoining a tea stall owned by the defendant. Defendant had cherished a grudge

when plaintiffs did not allow him further space to expand tea stall. One night defendant's tea stall was

burnt. In the morning when defendant was re-arranging his tea stall, some members of Brahmin Nijog,

including plaintiff, tried to demolish the tea stall and threw away his articles and furniture. The Police

arrested these persons and prosecuted them. The court found that the incident occurred but some of the

members were acquitted as they were not involved in the incident although, defendant named them in the

F.I.R. The question, therefore, in this case was whether those persons who were named and seen by the

defendant and were acquitted by the court, should prove that the defendant prosecuted them without any

reasonable and probable cause. The court held they need not prove.

3. Acquittal on merits must mean an acquittal after trial on a consideration of the evidence.
 4. T. Karim v. Abdul Khaliq, MANU/BH/0051/1938 : AIR 1938 Pat 529.

Girja Prasad was, therefore, acting without reasonable and probable cause and
trying to use the machinery for an improper purpose of falsely implicating the
plaintiff. He was held liable for malicious prosecution.

2.5. Prosecution by the defendant with malice

It is also for the plaintiff to prove that the defendant acted, with malicious
intention in prosecuting him. Malice means indirect and improper motive. In
Jogendra v. Lingraj,1the court stated that "malice" means the presence of some
improper and wrongful motive, that is to say, an intent to use the legal process
in question for some other than its legally appointed or appropriate purpose. It is
to be established by inference from circumstances and cannot be proved by
direct evidence. The court in that case inferred malice by stating that:

"As already stated, bad blood existed between defendant and members
of the Brahmin Nijjog. Therefore, when defendant found that some
members of the Brahmin Nijjog were responsible for committing certain
acts in relation to his properties, it is not unlikely that he availed of the
opportunity of implicating others even though they were not present and
did not participate in any of the acts.... is in the circumstances indicative
of improper and wrongful motive and the necessary inference is that it
was malicious."

It must be noted that `malice' cannot be inferred in the absence of "reasonable

and probable" cause. It can only be inferred on the basis of facts and
circumstances of each case because it cannot be proved by direct evidence.
Intention of the man even the devil knoweth not. In fact, the gist of the action of
malicious prosecution is malice or improper motive. "Malice" and "without
reasonable and probable cause" are the two distinct ingredients for an action for
malicious prosecution, which the plaintiff must prove. In other words, he should
prove that the proceedings were initiated with malicious spirit and not in
furtherance of justice.2

In Abdul Majid v. Harbansh Choube,3 the Station Officer of the police station

conspired with two other defendants and concocted a story that the plaintiff was
involved in a dacoity, and the `hansauli' used in the dacoity was recovered from
plaintiff's house. The court acquitted the plaintiff on the benefit of doubt. The
plaintiff brought an action against the defendants. The court found that the
defendants were actuated by improper and wrongful motive to prosecute the
plaintiff on the basis of concocted story. The court held the defendants liable.

But where there is reasonable and probable cause for instituting prosecution, the
 defendant will not be liable. Thus, in Bhogi Lal v. Saroj Bahen4, B agreed to sell
his house to A for a sum of Rs. 15000 and accepted Rs. 2000 as earnest money
from A. Later on, A came to know that the house was already mortgaged by B,
and that what B told at the time of agreement was false. He instituted criminal
proceedings against B for cheating under section 420, I.P.C. But the court
acquitted him. B then sued A for malicious prosecution. It was held by the court
that B honestly believed that he had been cheated and that there was no
malicious intention on the part of A.

__________________

1. MANU/OR/0036/1970 : AIR 1970 Ori 91.

2. Abrath v. N.E. Rly., (1883) 1 QBD 440.

3. AIR 1974 All 130.

4. MANU/GJ/0072/1979 : AIR 1979 Guj 200; see also, State of Bihar v. R.

Prasad, MANU/BH/0062/1980 : AIR 1980 Pat 267.

Thus it may be stated that any motive other than that of simply instituting a
prosecution for the purpose of bringing a person to justice is a malicious motive
on the part of the person who acts in that way. 1 But it should be noted that a
prosecution does not become malicious because it was instituted in anger.2 It
also does not necessarily become malicious merely because it was instituted in
the absence of reasonable and probable cause3. Ultimate acquittal of the plaintiff
does not mean that it was malicious. However enmity, retaliation, haste,
omission to make due and proper enquires, recklessness, harassment, personal
spite, sinister motive etc., are some of the items which are relied upon for
proving the malice.4 It has been held that bringing of a charge false to the
knowledge of the prosecutor imports in law malice sufficient to support a civil
action.5

It may be added that it is not necessary that there should be malice at the time
of launching the prosecution. Even at the subsequent stage if the prosecutor
becomes malicious, he may be liable for malicious prosecution. Thus, a
prosecution, though in the beginning not malicious, may nevertheless become
malicious in any of the stages through which it has to pass, if the prosecutor,
having positive knowledge of the innocence of the accused, perseveres in the
prosecution. So, a prosecution which has honestly begun may, due to
subsequent conduct of the prosecutor, become malicious.

It may also be noted that a corporation is liable to an action for malicious

prosecution although it has no mind of its own. This liability is based on the
principle of agency. Thus, in respect of a prosecution initiated by an agent with
 the principal's authority, express or implied, the malice of the agent will be
imputed to the principal.6 On the same principle the government is liable to an
action for malicious prosecution.

2.6. Damage

The plaintiff has to prove that he has suffered damage as a result of his
prosecution. There are three types of damages7, and the proof of any one would
be sufficient to support an action for malicious prosecution. They are (a) the
damage to a man's fame i.e., where the plaintiff has been accused of scandalous
matter, (b) damage to the person, i.e., when the person is put in danger of
losing

_____________________

1. M.L. Ahir Gayawal v. Sahai P. Dhami, 1990 ILR 27 Cal 532; Sanjeeva Reddy (in re:), (1910) 9 MLT 172;

N.N. Ray v. Basanta D. Bairagya, 1929 ILR 57 Cal 25; Chhaganlal v. Thana Municipality, (1931) 34 Bom LR

143; B.S. Deb v. B. Das, (1943) 47 Bom LR 566 (PC); M. Ram v. Chaturbhuj, 1939 ALJR 752; S. Mehtab v.

Balaji, ILR 1946 Nag 158; P.K.R. Reddy v. J.K. Rama Rao, ILR 1952 Hyd 709; State of Bihar v. Rameshwar
Pd.,MANU/BH/0062/1980 : AIR 1980 Pat 267; K.T.V. Krishnan v. P.

Thaivalappil, MANU/KE/0019/1989 : AIR 1989 Ker 83.

2. Braj Sunder Deb v. B. Dass, MANU/PR/0030/1943 : AIR 1944 PC 1; Bhogi Lal v. Saroj

Bahen, MANU/GJ/0072/1979 : AIR 1979 Guj 200.

3. Manohar Das v. Goculdas, (1902) 4 Bom Dr 560; Abubucker Ebrahim v. Maganlal K. Javeri, (140) 1 MLJ

668.

4. Bhim Sen v. Sita Ram, 1902 ILR 24 All 363; Rammyya v. Sivayya, 1990 ILR 24 Mad 549; Shivratan

Singh v. Ram Sroman, 1927 ILR 32 Lok 487.

5. Hira Lal v. Bandhu, (1889) 9 AWN 189; Radhey Lal v. Munoo, (1913) 11 ALJR 468; Maung Set Khaing v.

M.T. Nyeing, 1925 ILR 3 Rang 82; G.P. Sharma v. Umashanker Pathak, AIR 1973 MP 79; S.R. Dutt v.

Debabrata Dutt, AIR 1991 Cal 186.

6. Vydinadier v. Krishnaswami Iyer, (1911) 36 Mad 357; A. Ali v. Qurban Ahmad, (1920) 18 ALJR 204.

7. This has been discussed in great detail in the beginning of this chapter, see, Saville v. Roberts, Per Holt

C.J., supra.

his life, liberty or limb, (c) the damage to man's property i.e., where he is forced
to spend money to defend himself of the crime of which he is prosecuted. It may
be noted that the damage must be the reasonable result of prosecution and not
too remote. Liquidation proceedings against a company, 1 or Bankruptcy
proceedings against a trader2 ruin the reputation of the company or the trader,
and therefore an action lies for such proceedings if they are based on `malice'
 and `without reasonable and probable cause'.

In Ram Lal v. Mahender Singh,3 the plaintiff and his father had been implicated
in an offence of murder and they were acquitted by the court. Thereafter, the
plaintiff filed suit for malicious prosecution. This court held that merely because
the plaintiffs came to be acquitted or discharged by the Criminal Court as the
prosecution failed to prove the case beyond doubt, it does not mean that such
acquittal or discharge could necessarily boomerang upon the defendant as a
case for malicious prosecution. The plaintiffs had to prove that the prosecution
was malicious, male fide and done with an intention to harass and defame the
plaintiffs. No such case was made out by the plaintiffs, much less proved.
Therefore, the plaintiffs were not entitled to claim any damages.

In Sova Rani Dutta v. Debabrata Dutta,4 the defendant lodged a false F.I.R.

against the plaintiff and his sister alleging theft of her ear rings. The defendant
knew that the FIR was false and that the police would handcuff the plaintiff. The
defendant was held liable for malicious prosecution and the humiliation suffered
by the plaintiff due to his handcuffing.

In certain cases it has been held that fees paid to Advocate in defending the
accused person can also be allowed as damages because such consequences are
considered as natural consequence of the malicious prosecution. 5 In Lakhanlal v.
Kashinath,6 a reckless allegation was made against the character of a
professional lawyer. The court awarded vindictive damages.

3. Distinction between false imprisonment and malicious prosecution

Following are the main points of distinction between false imprisonment and malicious
prosecution:

(1) False imprisonment is wrongfully restraining the personal liberty of the

plaintiff whereas malicious prosecution is the unlawful use of legal procedure to
bring about legal confinement.

(2) The personal liberty of plaintiff is wrongfully restrained by private individual

in false imprisonment whereas arrest under malicious prosecution is secured by
judicial sanction.

(3) The defendant under false imprisonment must affirmatively prove the
existence of reasonable and probable cause as justification whereas the plaintiff
has to prove its non-existence in malicious prosecution.

(4) Malice is an essential ingredient for an action of malicious prosecution but

malice may not be proved for false imprisonment.
___________________

1. Q.H.C. Gold Mining Co. v. Eyre, (1983) 11 QBD 674.

2. Behari Lal v. Sri Ram, 1945 ALJR 462; Johnson v. Emerson, 1871 LR 6 Ex 329.

3. MANU/RH/0300/2007 : AIR 2008 Raj 8.

4. AIR 1991 Cal 185; See also P.K. Soni v. Singhara Singh, AIR 1992 Del 264.

5. Goday N.G. Ray v. Sri Anketama V.N. Rao, Gora, 6 M II CR 85; See also Sanjeevi Reddi (in re:), (1910)

8 IC 884.

6. MANU/MP/0081/1960 : AIR 1960 MP 171.

© Universal law Publishing Co.

   

CHAPTER 25

DEATH IN RELATION TO TORT

SYNOPSIS

1. Introduction

2. Survival of actions

3. Loss to dependants

1. Introduction

The death of a person due to wrongful act of another may cause loss to his estate or to
his relatives. The question therefore is: whether an action can be taken against the
defendant for the loss suffered by the estate of the deceased or by his relatives.
Accordingly, this topic has been divide into two parts:

1. Survival of actions.

2. Loss to dependants.

2. Survival of actions

The general rule at common law was that tortious rights and liabilities were
extinguished by the death of the plaintiff or of the defendant respectively.1 This rule was
based on the maxim "actio personalis moritur cum persona", which means rights and
duties of the plaintiff or of the defendant ended on their death respectively. This rule
had been abolished by the Law Reform (Miscellaneous Provisions) Act, 1934 in England
which now governs the law relating to survival of rights of action.2 In India, too, this
rule had been abolished by the Indian Succession Act, 1925. Section 360 of the Indian
Succession Act provides that:

"All demands whatsoever and all rights to prosecute or defend any action or
special proceeding existing in favour of or against a person at the time of his
decease, survive to and against his executors or administrators;

___________________

1. This rule was subject to two exceptions: (a) According to secs. 37 and 40 of the Indian Contract Act,

1872, contractual obligations could be enforced by or against the legal heirs of the parties to the contract.

But where the contract is for personal services, the legal representative could not be made liable or bound,

(b) Where the deceased, before his death, wrongfully appropriated the property of another person, such

property will not pass to his to legal heirs. The person entitled to such property can recover such property

or its value from the legal heirs.

2. Section 1(i) of the Law Reform (Miscellaneous Provisions) Act, 1934 provides "on the death of any

person......all causes of action subsisting against or vested in him shall survive against, or, as the case may

be, for the benefit of, his estate ......"

except causes of action for defamation, assault, as defined in the Indian Penal
Code, or other personal injuries causing the death of the party; and except also
cases; where after the death of the party, the relief sought could not be enjoyed
or granting it would be nugatory."

In the above section two possibilities are envisaged. First, where X has a cause of
action, suppose, in negligence, against Y, and Y dies. In such a case Y's liability to X
shall survive Y's death and can be enforced by X against Y's estate. Second, where X,
having a cause of action against Y, dies, then X's legal representatives can sue Y or Y's
estate.

The above general rule does not apply to a cause of action for defamation, assault or
other personal injuries causing the death of the party. It follows that under section 360
of the Indian Succession Act 1925, the maxim "actio personalis moritur cum persona'
still applies where the injury is in relation to his defamation, assault, personal injuries,
or where the relief sought could not be enjoyed or granting it would be nugatory. Thus,
actions for such aforesaid injuries do not survive and die with the death of the party. A
question arose whether personal injuries means physical injuries only, or does it include
other injuries like malicious prosecution? The opinions of the courts on this issue are
divided. The Allahabad,1 Bombay2, Patna3 and Madras4 High Courts have held that
personal injuries include injury by malicious prosecution and therefore such injury does
not survive after the death of a person; whereas Calcutta 5 and Rangoon6 High Courts
have held that personal injuries do not include the injury by malicious prosecution and,
therefore, an action for malicious prosecution survives after the death of the party. This
controversy was settled by the Supreme Court in the case of M. Veerappa v. Evelyn
Sequeira7, by approving the decision of the Madras High Court and over-ruling that of
Calcutta and Rangoon High Courts. The Supreme Court held that the expression
"personal injuries" is to be read ejusdem generis with the words `defamation' and
`assault' and not with assault alone. Thus, now the settled view is that the expression
`personal injuries' does not mean only injuries to the body but all injuries to a person
other than those which cause death. Apart from that, in Zargham Abbas v. Hari Chand8,
a suit for defamation on the basis of malicious prosecution was decreed against the
father and his son. At the appellate stage father died. It was held by the Allahabad High
Court that although the cause of action does not survive on the death of the father, but
the decree under appeal could still be executed against the assets in the hands of legal
heir. It was also held that the death of the father did not affect the maintainability of
the appeals from the decree.

___________________

1. Mahtab Singh v. Hub Bal, (1926) 25 Bom LR 435.

2. Motilal v. Harnarayan, (1932) 25 Bom LR 435.

3. P. Singh v. Ram Autar, (1919) 4 Pat LJ 676.

4. Rustomji v. Nurse, (1920) 44 Mad 357.

5. Pashupati Datta v. Kelvil J. Mills, (1937) 2 Cal 518; see also Krishna Beharisen v. Corporation of

Calcutta, ILR (1904) 31 Cal 993.

6. Cassim and Sons v. Sara Bibi, AIR 1936 Rang 17.

7. MANU/SC/0259/1988 : AIR 1988 SC 506.

8. MANU/UP/0219/1980 : AIR 1980 All 259.

In Supreme Bank v. P.A. Tandolka1, the question was whether, a civil action for the
breach of statutory duty would survive on the death of delinquent Director of a bank.
The court answered in negative and also stated that the liability is confined to assets or
estate left by the deceased in the hands of successors.

In Narsingha Charan v. Ratikanta2, a money decree was passed against a Hindu father
in respect of amount received by him by misrepresentation. It was held by Orissa High
Court that the liability of the father in such a case was personal and that it does not
devolve on his son. Had it been a debt, it could have been realised from the son under
the dictum of moral obligation. The court, thus, held that the plaintiff's relief under the
law of torts had ended with the death of the father and the son could not be made liable
for the same.

If personal injuries to a person cause his death even after many years, the cause of
death does not abate. In Klaus Mittelbachert v. East India Hotels Ltd.3, the plaintiff, a
German National, stayed in Hotel Oberoi Continental, New Delhi. There he dived in the
swimming pool and his head hit on the bottom which resulted in serious injuries to him.
The High Court applied the doctrine of res ipsa loquitur and held the Hotel liable for
damages amounting to Rs 50 lakhs.

The above decision was appealed to the Division Bench of Delhi High Court.4 During the
pendency of the appeal the plaintiff died. It was found that the death was caused due to
personal injuries suffered by him in the swimming pool of the Hotel, and the cause of
action did not abate and could be continued by the legal representatives. The court also
held alternatively that the suit was based on contract with the hotel management and
for this reason also it did not abate.

Thus, under the Indian Succession Act we have seen above that on the death of a
person his successors can take an action in respect of those rights which had become
vested in the deceased before his death except where the action was for defamation,
assault, personal injuries causing the death or where after the death of the party, the
relief sought could not be enjoyed or granting it would be nugatory.

3. Loss to dependants

Apart from the maxim `actio personalis moritur cum persona", there was another rule
in English common law that "the death of a human being could not be complained of as
an injury" in civil court.5 It, therefore, appears that although a person might have a
claim for the death of a cow or a dog, but under common law he could not maintain a
civil action for the death of a human being. This rule

__________________

1. MANU/SC/0005/1973 : AIR 1973 SC 1104.

2. MANU/OR/0060/1978 : AIR 1978 Ori 217.

3. AIR 1997 Del 201 (Single Judge Lahoti J.).

4. AIR 2002 Del 124 (DB).

5. Baker v. Bolton, (1808) 1 Comp 493, per Lord Ellenborough. In that case the plaintiff and his wife were

travelling in a coach. Due to defendant's negligence the coach was upset and the plaintiff was injured and

his wife was so severely hurt that she died about a month after in an hospital. The plaintiff could recover

compensation for injury to himself. He also recovered compensation for the loss of wife's society and

distress from the date of accident to the date of her death but he could recover nothing for such loss after
 her death.

was very harsh to the families and widows of the men killed in accident. This hardship
was, therefore, mitigated in England by the Fatal Accidents Act, 1846, known as Lord
Campbell's Act. Later on, the aforesaid Act was repealed and replaced by the Fatal
Accidents Act, 1976 which is, however, a consolidating statute1. In India, too, this
hardship was mitigated as early as 1855 when the Fatal Accident Act was passed. This
Act is based on the English Fatal Accident Act. Section 1 of the (Indian) Fatal Accident
Act, 1855, provides:

"Whenever the death of a person shall be caused by wrongful act, neglect or

default and the act, neglect or default is such as would (if death had not ensued)
have entitled the party injured to maintain an action and recover damages in
respect thereof, the party who would have been liable if death had not ensued
shall be liable to an action or suit for damage notwithstanding the death of the
person injured, and although the death shall have been caused under such
circumstances as amount in law to felony or other crime.

Every such action or suit shall be for the benefit of the wife, husband, parent and child,
if any, of the person whose death shall have been so caused, and shall be brought by
and in the name of the executor, administrator or representative of the person
deceased and in every such action the Court may give such death to the parties
respectively, for whom and for whose benefit such action shall be brought; and the
amount so recovered, after deducting all costs and expenses, including the cost not
recovered from the defendant, shall be divided amongst the before mentioned parties,
or any of them, in such shares as the Court by its judgment or decree shall direct."

It should be noted that section 1 of the (Indian) Fatal Accidents Act, 1855 gives
pecuniary benefit to the husband, wife, parent and child and to no body else.2 Thus, in
Municipal Corporation of Delhi v. Subhagwanti3, a clock tower in Chandni Chowk, Delhi
fell due to negligence of the Municipal Corporation, causing the death of three persons.
The likely loss was capitalised by the court for a period of 15 years to calculate the
amount of damages payable to the legal representatives. In Union of India v. Sugrabai 4,
the loss to the legal representatives was capitalised by the Bombay High Court for a
period of 20 years.

The question arises whether a pecuniary loss suffered by the legal representatives (i.e.,
dependants) by reason of victim's death could be adjusted

___________________

1. Section l(1) of the English Fatal Accidents Act, 1976, provides that "If death is caused by any wrongful

act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to

maintain an action and recover damages in respect thereof, the person who would have been liable if death
 had not ensued shall be liable to an action for damages notwithstanding the death of the person injured."

This right of action shall be for the benefit of the dependants of the deceased.

2. Thus, Grand parents and grand children are excluded from this benefit under section 1 of the Fatal

Accident Act, 1855. This is most unfair and unjust. English Act includes these persons and also brother and

sisters and even their issues even, under section 1(3) of the English Fatal Accident Act, 1974.

3. MANU/SC/0010/1966 : AIR 1966 SC 1750, discussed supra under the Chapter `Negligence'.

4. MANU/MH/0038/1969 : AIR 1969 Bom 13, discussed supra under the Chapter `Vicarious Liability

of the State'.

against the pecuniary advantage from whatever source comes to him. This question was
considered by the Supreme Court of India in an important case of Gobald Motor Service
v. Veluswami.1

The facts were that Gobald Motor Service Ltd., (hereinafter called the company) was
engaged in the business of transporting passengers by bus between Dharapuram and
Palni in the State of Madras. On September 20, 1947 due to negligence of the
company's driver an accident took place, in which many persons, including one
Rajaratnam, were injured. Rajaratnam died of the injuries received in the accident on
September 23, 1947. Accordingly, his father (first plaintiff), his widow (the second
plaintiff) and his five sons (plaintiffs 3 to 7) filed suit in the Civil Court for compensation
under section 1 of the Fatal Accident Act, 1855. The lower court held that the
defendants were liable for the negligence of their servant, and awarded damages as
follows:

1. First Plaintiff (father)—Rs. 3,600 under section 1 of the Act.

2. Plaintiffs (2 to 7) i.e., widow and five sons—Rs. 25,200 under section 1 of the
Act.

3. Plaintiffs (2 to 7) were also given Rs. 5000 under section 2 of the Act.

The High Court of Madras confirmed the award of the lower court with a little
modification by reducing the amount of Rs. 3,600 to Rs. 1000 in the case of first
plaintiff i.e., the father. On further appeal it was stated by the Supreme Court that "the
general principle is that the pecuniary loss can be ascertained only by balancing on the
one hand the loss to the claimants of the future pecuniary benefit by reason of the
death and on the other any pecuniary advantage which from whatever source comes to
them that is, the balance of loss and gain to a dependant by the death must be
ascertained.

The second important question in that case was that whether the award of Rs. 5000
under section 2 of the Act (to plaintiffs 2 to 7) should go in reduction of Rs. 25,200
awarded under section 1 of the Act to the same persons on the ground that otherwise it
would be duplication of damages in respect of the same wrong. In order to answer this
question the Supreme Court referred to section 2 of the Act2, and stated that the cause
of action under section 1 and that under section 2 are different. While under section 1
damages are recoverable for the benefit of the persons mentioned therein, under
section 2 compensation goes to the benefit of the estate. Further, whereas under
section 1 damages are payable in respect of loss sustained by the persons mentioned
therein, under section 2 damages can be claimed inter alia for loss of expectation of life.
Though in some cases parties that are entitled to compensation under both the sections
may happen to be the same persons, they need not necessarily be so; persons entitled
to benefit under section 1 may be different from those claiming under section 2. Prima
facie as the two claims are to be based upon different causes of action, the claimants,
whether the same or different, would be entitled to recover

_________________

1. MANU/SC/0016/1961 : AIR 1962 SC 1.

2. Proviso to Section 2 provides. "Provided that, in any such action or suit, the executor, administrator or

representative of the deceased may insert a claim for and recover any pecuniary loss to the deceased

occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of

the assets of the estate of the deceased."

compensation separately under both the heads. The Supreme Court after referring to
many English decisions1, observed:

"The right of action under sections 1 and 2 of the Act are quite distinct and
independent. If a person taking benefit under both the sections is the same, he
cannot be permitted to recover twice over for the same loss. In awarding
damages under both the heads, there shall not be duplication of the same claim,
that is, if any part of the compensation representing the loss to the estate goes
into the calculation of the personal loss under section 1 of the Act, that portion
shall be excluded in giving compensation under section 2 and vice versa."

The court then held that the amount of compensation of Rs. 25,200 was given to the
plaintiffs from 2 to 7 (i.e., widow and five sons) by taking into consideration the
reasonable provision the deceased, if alive, would have made for them. Under section 2
the court awarded damages for the loss to the estate in a sum of Rs. 5000. That figure
represents the damages for the mental agony, suffering and loss of expectation of life.
There was, therefore, no duplication in awarding damages under both the heads. The
judgment of the lower court was confirmed by the Supreme Court.

Similarly, in Ishwar Devi v. Union of India2, the court found that the widow of the
deceased got a share in her husband's business on his death and that the share was
much more than likely loss to her due to her husband's death. Accordingly, the court did
not allow any compensation to the widow of the deceased. The court, however, allowed
compensation to three dependant children, father and mother.

In case of claim of damages out of criminal action for death of victim, the claim of
dependents for damage by a separate civil suit during pendency of criminal proceedings
is maintainable.3

In Secretary of State for India in Council v. Gokal Chand4, an important question before
the court was how far the defendant should be held liable under sections 1 and 2 of the
Fatal Accident Act, 1855.

The facts were that one Bansi Lal was travelling in a train belonging to the
NorthWestern Railway. He sustained serious injuries in consequences of that train
colliding with another train of the same railway and died shortly afterwards. His legal
representatives brought an action for the recovery of damages for the pecuniary loss,
which resulted from his death, to the members of his family and also included in the
action a claim for Rs. 1300 on the ground that the deceased was carrying with him
currencynotes, and that the notes were lost by reason of the negligence of the railway
administration. The main question before the court was whether the defendant should
be held liable for the loss of Rs. 1300 also. The court observed that the law
contemplates two sorts of damages under the Fatal Accidents Act, 1855—the one is the
pecuniary loss to the estate of the deceased resulting from the accident; the other is
the pecuniary loss sustained by the members of his family through his death. The action
for the latter is brought by the legal representatives, not for the estate but as trustees
for

_________________

1. Davies v. Powell Duffryn Associated Collieries Ltd., 1942 AC 601; Nance v. British Columbia Railway Co.

Ltd., 1951 AC 601; Rose v. Ford, 1937 AC 826; Feay v. Barnwell, 1938 (1) All ER 31.

2. AIR 1969 Del 183.

3. Suba Singh v. Davinder Kaur, MANU/SC/0741/2011 : AIR 2011 SC 3163.

4. AIR 1925 Lah 636.

the relatives beneficially entitled; while the damages for the loss caused to the estate
are claimed on behalf of the estate and when recovered, form part of the assets of the
estate. The loss to the estate had accrued during the lifetime of the deceased and could
have been recovered by him. The Court then looked into the facts and found that:

"The disappearance of the currency-notes in the present case undoubtedly

caused pecuniary loss to the estate of Bansi Lal; but the loss was not occasioned
 by any act, neglect or default of the defendant. The court then stated that "the
cardinal principle in cases of this character is whether the damage claimed is the
natural and reasonable result of the defendant's act, and according to the rule
repeatedly adopted by the English courts, a damage will assume that character if
it can be shown to be such a consequence as, in the ordinary course of things,
would flow from the act. The damage is held to be remote when, although
arising out of the cause of action, it does not so immediately and necessarily
flow from it, that the offending party can be made responsible for it."

It was, therefore, held by the court that:

"The evidence in this case does not show who took away the notes. If some
person stole them, while the injured was lying unconscious or dead, surely the
railway cannot be held liable for the act of the thief. And it has been repeatedly
held that the damage is too remote if it results from the wrongful act of a third
party such as could not naturally be contemplated as likely to spring from the
defendant's conduct. The loss of currency notes was only a remote consequence
of the defendants negligence, and that the plaintiffs are not entitled to recover
that loss of Rs. 1300 from the defendant."

Thus only that damage would be taken into account which could naturally be
contemplated as likely to spring from the defendant's conduct, or which is the natural
and reasonable result of the defendant's act.

Deductions.—

The damages to be awarded to the dependants under the Fatal Accident Act must take
into account any pecuniary benefit accruing to the dependants in consequence of the
death of the deceased.1 The general principle is that the pecuniary loss can be
ascertained only by balancing on the one hand, the loss to the claimants of the future
pecuniary benefit and on the other any pecuniary advantage which from whatever
source comes to them by reason of the death, that is, the balance of loss and gain to a
dependant by the death, must be ascertained.2

A very important point which needs mention is that the Supreme Court in the case of
New India Insurance Co. Ltd. v. Smt. Shanti Misra3, has held that substantive rules
applicable for determining the compensation under section

____________________

1. Davies v. Powell D.A. Collieries Ltd., 1942 AC 601 (HL).

2. Gobald Motor Service Ltd. v. R.M.A. Veluswami, MANU/SC/0016/1961 : AIR 1962 SC 1; see also

C.K. Subramania Iyer v. T. Kuhi Kuttan Nair, MANU/SC/0011/1969 : AIR 1970 SC 376; Sheikhpura

Transport Co. Ltd. v. Northern India Transport Ins. Co. Ltd., MANU/SC/0539/1971 : AIR 1971 SC
 1624.

3. MANU/SC/0547/1975 : AIR 1976 SC 237; see also Kamla Devi v. Kishan Chand, 1970 MPLJ 273;

Minoo B. Mehta v. Balkrishna, MANU/SC/0246/1977 : AIR 1977 SC 1248.

110B of the Motor Vehicle Act, 1939 (now 1988 Act) are the same as under the Fatal
Accident Act and the law of tort. The only difference is that the Motor Vehicle Act
provides a new forum with some alteration in procedure to make the remedy cheap and
expeditious. Similarly, the Madhya Pradesh High Court in Kashiram Mathur v. Sardar
Rajendra Prasad1, has also held the same view about section 110B of the Motor Vehicle
Act that balancing principle applies to claims arising under that provision.

A controversy arose about the categories of dependants under the Motor Vehicles Act
and the Fatal Accidents Act. According to some High Courts, the provisions regarding
the dependants under the Motor Vehicle Act are not fettered by the provisions of the
Fatal Accidents Act.2 But contrary view has been taken by some other High Courts that
the provisions in the Motor Vehicles Act merely relate to procedure but substantive law
as contained in the Fatal Accidents Act is not affected.3 The Supreme Court has now
settled the controversy in the case of Gujarat State Road Transport Corp. v. Ramanbhai
Prabhatbhai,4 by holding that the provisions of sections 110A and 110B of the Motor
Vehicle Act, 1939, which provide that an application for compensation is to be made on
behalf of and for the benefit of legal representatives and that the Tribunal can
determine the amount of compensation which appear to it to be just specifying the
persons to whom compensation is to be paid, are substantive provisions which displace
the provisions of section 1A of the Fatal Accidents Act, 1855, more specifically, 2nd and
3rd paragraphs of that section in relation to claims arising under the motor accidents.

Another important question, whether the "balancing principle" is applicable in making

awards under the Motor Vehicle Act, has recently been settled by the Supreme Court in
the case of Hellen C. Rebello v. Maharashtra State Road Transport Corporation 5, where
it was held that any pecuniary gain which is not directly related to accidental death and
which the claimant would have received on account of any form of death, accidental or
otherwise, is not pecuniary advantage deductible in computation of just compensation.
The Supreme Court further held that in determining the question of compensation under
the Motor Vehicles Act, the court has a wider discretion as it has to determine just
compensation and a question relating to deduction has to be approached from that
angle. Thus, the amount received by the claimant on the life insurance of the deceased
was held not deductible from the compensation received under the Motor Vehicles Act.

__________________

1. 1982 MPLJ 803 (FB).

2. Joshiram v. Naresh Kanta, 1978 ACJ 80 (P&H); K.S.R.T. Corp. v. Peerappa, 1979 ACJ 239 Kant; State v.
 Dateram, 1981 ACJ 219 (HP); Megi Bhai v. Chaturbhuj, 1977 ACJ 253 Guj; Chairman, A.P.S.R.T. Corp. v.

Shafia Khatoon, 1985 ACJ 212 AP.

3. P.B. Kader v. Thatchamma, MANU/KE/0035/1970 : AIR 1970 Ker 241; Perumal v. Elluswamy

Reddiar, 1974 ACJ 102 Mad; Dewan Hari Chand v. Delhi Municipality, 1981 ACJ 131 Del; Budha v. Union of

India, AIR 1981 MP 81; Shanker Rao v. Babulal Fouzdar, AIR 1980 MP 154.

4. MANU/SC/0469/1987 : (1987) 3 SCC 234: AIR 1987 SC 1690.

5. AIR 1999 SC 3191.

© Universal law Publishing Co.

   

CHAPTER 26

REMEDIES

SYNOPSIS

1. Introduction

2. Kinds of damages

2.1. Contemptuous damages

2.2. Nominal damages

2.3. Ordinary, aggravated and exemplary damages

2.4. Prospective damages

2.5. Assessment of damages for personal injuries

2.6. Interest on damages

2.7. Damages for shortened expectation of life

2.8. Damages for loss of consortium

3. Injunctions

3.1. Mandatory and prohibitory injunction

3.2. Interlocutory and perpetual injunction

4. Specific restitution of property

1. Introduction

There are two kinds of remedies in tort: judicial and extra-judicial. Judicial remedies are
obtained through courts of law; while extrajudicial remedies are secured by means of
selfhelp. Extra-judicial remedies are (a) abatement of nuisance, (b) recaption of goods,
(c) distress damage feasant, (iv) expulsion of trespasser and (v) reentry on land. These
remedies have already been discussed at relevant places in the appropriate chapters.
But it is suggested that these extrajudicial remedies should not be normally resorted to,
for it may create problems of law and order. Judicial remedies are: (i) damages; (ii)
injunction and (iii) specific restitution of property. These are discussed here.

2. Kinds of damages

Damage means loss or injury. When the plaintiff suffers loss or injury due to the
wrongful act of the defendant then he is entitled to receive damages from the
defendant. Damages are, therefore, the sum of money which the plaintiff is entitled to
receive from the defendant (wrongdoer) as compensation for the injuries or losses
suffered by him. Thus, damage is the loss which is the cause 
of the award of the damages. Damages are of four kinds: (1) contemptuous; 
(2) nominal; (3) ordinary; and (4) exemplary.

2.1. Contemptuous damages

These damages are awarded when it is considered that the plaintiff should not
have brought an action against the defendant. Here the plaintiff may be
technically right, but morally wrong. When the plaintiff has technically a legal
claim but there is no moral justification for it, the Court may award a penny or a
paisa showing disapproval of the conduct of the plaintiff. In such cases the
chances of getting costs are very little for the successful plaintiff. For instance, A
sues B for assault and the court finds that B was provoked by an offensive
remarks of A's. In such a case A may be awarded only a minimal sum whereas,
had he not made the remark; his damages might have been heavy. In such a
case, the plaintiff might be denied costs. Contemptuous damages are also called
`derisory' damages.

2.2. Nominal damages

Nominal damages are awarded in those cases where the plaintiff's legal right is
violated but he suffers no loss. For example, a person walks across the land of
another without permission, thus committing trespass—the land owner suffers
no actual loss. In such a case the judge may award nominal damages, say
rupees five or ten. In Ashby v. White 1, the defendant wrongfully refused to
register a duly tendered vote of the plaintiff in the parliamentary elections in
 England. The plaintiff suffered no loss because the candidate for whom he
wanted to cast his vote was elected. The defendant was held liable for a sum of
£ 5 alongwith costs of the case. Chief Justice Holt said: "If a man gives another
a cuff on the ear, though it costs him nothing, not so much as a little dischylon,
yet he shall have his action, for it is a personal injury. So a man shall have an
action against another for riding over his ground, though it did no actual
damage, for it is an invasion of the property and the other has no right to go
there". It may be noted that in such kind of cases there is no censure of the
plaintiff's conduct; whereas in contemptuous cases there is.

2.3. Ordinary, aggravated and exemplary damages

Ordinary damages are also known as `Compensatory' damages. Ordinary

damages are awarded to compensate the injured party fairly by allowing him
money compensation equivalent to the loss suffered by him. Aggravated
damages are awarded when the court increase the damages on account of the
manner of commission of a tort. Thus, insult offered in the course of an assault 2,
an act done wilfully3, wantonly4, maliciously or with undue consideration, 5 may
call for a higher award. Such damages are called aggravated damages. A
beautiful illustration on this point is the case of McCarey6 where Pearson L.J.
said:

__________________

1. 1703 2 Lord Rayam, 938; See also Tozer v. Child, (1857) 7 E&B 377.

2. Merest v. Harvey, (1814) 5 Taunt 442.

3. Emblen v. Myers, (1860) 6 H&N 54.

4. Tulidge v. Wade, (1769) 3 Wils 18.

5. Chamberlain v. Greenfield, (1772) 3 Wils 292.

6. McCarey v. Asso. Newspapers Ltd., (1964) 3 All ER 947.

"Compensatory damages in a case in which they are at large may include

several different kinds of compensation to the injured party. They may
include not only actual pecuniary loss, or any social disadvantages which
result .... from the wrong.... They may also include natural injury to the
plaintiff's feelings; the natural grief and distress which he may feel in
being spoken of in defamatory terms; and if there has been high-handed
or oppressive or insulting...behaviour by the defendant which increases
the mental pain and suffering which is caused,...and which may
constitute injury to the plaintiff's pride or selfconfidence, those are proper
 elements to be taken into account where damages are at large. There is,
however, a sharp distinction between damages of that kind and...
exemplary damages". 

Exemplary damages are also known as `punitive', `vindictive' or

`retributive' damages. And the distinction drawn by Pearson L.J., is that
damages of this kind are not intended as compensation to the plaintiff for
his loss, but as what the Americans call "smart money", a form of
punishment to the defendant and a warning to others against undesirable
behaviour. This aim, however, is alien to the general theory of the law of
tort because: "it is recognised today......that the basic rule of common
law is that damages are awarded in civil actions as compensation for
injury, not as punishment for wrongdoing. To punish the wrongdoer is the
function of the criminal courts ..."1

Yet in certain special circumstances, defined by Devlin L.J., in Rookes v.

Barnard,2 exemplary damages are allowed, and the law departs from the
logic3 of the rule that, the aim of damages is compensation rather than
punishment. According to Lord Devlin, exemplary damages can be awarded in
the following three exceptional cases:

(i) Where the plaintiff has been aggrieved by oppressive, arbitrary or

unconstitutional action by servants of the Government, "though not when
he is subjected to similar treatment by corporation's or private
individuals."4

(ii) Where the defendant's conduct "has been calculated by him to make
a profit for himself which may well exceed the compensation payable by
him to the plaintiff ... Exemplary damages can properly be awarded
whenever it is necessary to teach a wrongdoer that tort does not pay."5

(iii) Where Exemplary damages are authorised by the Statute.6

In India the above rule has been followed. A beautiful illustration is the recent
case of Bhim Singh v. State of J&K7, where Mr. Bhim Singh, an M.L.A., was
arrested and detained to prevent him from attending the Assembly Session. The

___________________

1. McCarey v. Asso. Newspapers Ltd., (1964) 3 All ER 956.

2. 1964 AC 1129.

3. See Casell & Co. Ltd. v. Broome, 1972 AC 1027.

 4. Rookes' case, Ibid., pp. 122627.

5. Ibid., p. 1227.

6. Ibid., p. 1027.

7. MANU/SC/0064/1985 : AIR 1986 SC 494.

Supreme Court considered it to be an appropriate case for awarding exemplary

damages amounting to Rs. 50,000. Similarly in Sebastian's case1, two persons
detained by the Army authorities could not be produced in the Court and were
stated to be missing. The Supreme Court awarded Rs. 1,00,000 as exemplary
damages to each wife of the two missing persons for torture, agony and mental
oppression.

2.4. Prospective damages

A tort may cause not only present damage but also continuing or future loss, as
where a person is seriously injured and thus deprived of future earning power.
But common law insisted that there should be one suit for both the losses—
present and future, because public policy demands an end to law suits. This
being so, compensation is made not only for present loss, but also as best it can
be for future loss in the form of `prospective' damages. A case worth
mentioning on this point is that of Y.S. Kumar v. Kuldip Singh2, where the
respondent was Excise and Taxation Officer. He was hit by a motor cycle,
resulting in physical injuries to his ankle. He suffered permanent disability due to
such injuries which affected enjoyment of his normal life. The Punjab and
Haryana High Court awarded prospective compensation of Rs. 7,200 calculated
at Rs. 50, p.m. for a period of 12 years in respect of physical disability and loss
of enjoyment of normal life.

Thus, it has been seen that the damages are assessed in one and the same
action. There cannot be more than one suit for the same cause of action.
However, there are two exceptions to the aforesaid rule: (a) where two distinct
rights are violated by the same wrongful act, separate actions are permissible.
(For example, in Brunsden v. Humphrey,3 the plaintiff was a car driver. He was
seriously injured and his car was damaged due to the negligence of the
defendant's servant. He recovered for the damage to the car and then brought a
separate suit for personal injuries. Held: The later claim was maintainable
because the causes of action were separate.) (b) When the tort is a continuing
one, successive actions are permissible.

2.5. Assessment of damages for personal injuries

The basic principle of tortious liability is to redress the injury suffered by the
 plaintiff and, therefore, the quantum of damages depends upon the loss suffered
by the plaintiff. The damages for personal injury may be given under the
following heads:4

(i) Personal pain, suffering and loss of enjoyment of life.

___________________

1. Sebastian M Hongary v. Union of India, AIR 1984 SC 1026; see also, Rudal Sah v. State of
Bihar, MANU/SC/0380/1983 : AIR 1983 SC 1086, where the plaintiff was unlawfully kept under

detention for 14 years. The Supreme Court awarded Rs. 30,000 as interim measure with the right to claim

further compensation in a regular suit.

2. AIR 1972 P&H 326.

3. (1884) 14 QBD 141.

4. Rehana v. Ahmedabad Municipal Transport Service, AIR 1976 Guj 37. See also Ranjit Singh v.

Meenaxiben, (1972) 13 Guj LR 662.

(ii) Actual pecuniary loss including any expenses reasonably incurred by

the plaintiff.

(iii) The probable future loss of income by reason of incapacity or

diminished capacity for work.

In Rehana R. Kasambhai v. Ahmedabad Municipal Transport Service 1, as the

injured girl was hardly 16 years of age and got a permanent limp, she was
entitled to get a compensation of Rs. 10,000 under the first head; for medical
expenses she got Rs. 2500 under the second head and was awarded Rs. 7600
under the third head. Out of this total sum of Rs. 20,000, 25 % was deducted,
resulting in the final award of Rs. 15,000 as total compensation. The Court also
recognised the diminished prospect of marriage due to this injury.

In Klaus Mittelbachert v. East India Hotels Ltd.,2 the plaintiff, Mittelbachert, a

German National and CoPilot in Air Lufthansa, aged 30 years, checked into Hotel
Oberoi Inter-continental, New Delhi on 11th August, 1972. On 13th August,
1972, while diving in the swimming pool in the hotel, he hit his head on the
bottom of the swimming pool. He was seriously injured and appeared to have
been paralysed in the arms and legs. He was admitted in the Holy Family
Hospital and on August 21, 1972 he was flown to Germany under medical
escort. He could not work thereafter, suffered considerable pain and suffering
and incurred a lot of medical expenditure which included, nursing,
physiotherapy, special diet, special furniture, mechanical equipments etc. He
died on 27-9-85 at the age of 43 years. The defendants were found negligent
 because the accident occurred due to insufficient depth of the swimming pool.
The Court, keeping in mind the high price the service pack of a 5-Star hotel
attracts, and casts an obligation to pay exemplary damages, awarded damages
amounting to Rs. 1,03,25,245, but a decree of Rs. 50 lacs only was passed in
favour of the plaintiff because he claimed only that much of compensation.

Expenses on attendant's services in Veeran v. Krishnamoorthy, 3 it was held that

damages also include payment to procure the attendance of somebody whose
services becomes reasonably necessary as a consequence of the accident.

In Donnelly v. Joyce,4 a minor aged six years was injured in an accident. The
court held that he was entitled to recover the loss of wages of his mother who,
while attending him, lost her wages. Similarly, in Schneider v. Eisovitc,5 in a
motor accident in France, Mr. Schneider was killed and Mrs. Schneider was
seriously injured and admitted in a Hospital. On hearing this, the brother of Mr.
Schneider and the sister of Mrs. Schneider, flew for her assistance.

___________________

1. MANU/GJ/0071/1976 : AIR 1976 Guj 37. See also, Laxminarayan v. Sumitra

Bai, MANU/MP/0016/1995 : AIR 1995 MP 86, where the plaintiff was lured by the defendant for

sexual relations under the garb of promise to marry. When she was pregnant he refused to marry her. The

court awarded substantial damages for physical pain, indignity, chances of marriage becoming dim and

social stigma.

2. AIR 1997 Del 201.

3. AIR 1996 Ker 172.

4. 1974 ACJ 305.

5. (1960) 2 QB 430.

Mrs. Schneider also claimed the out of pocket expenses of the aforesaid brother
and sister who flew for her assistance. The court held that their services were
necessary as a consequence of accident and, therefore, entitled to recover the
same.

2.6. Interest on damages

In addition to the amount of damages, the interest thereon has also been
allowed by the courts at the rate of 6% from the date of filing the petition till the
date of payment of compensation.1

2.7. Damages for shortened expectation of life

 When a normal expectation of life is shortened as a result of injury, the damages
may be claimed under this head. This anomalous head was sanctioned for the
first time by the Court of Appeal in Flint v. Lovell2, and it was then extended in
Rose v. Ford3 to actions brought in favour of the estates of deceased people. In
1941 the House of Lords in the case of Benham v. Gambling4 considered the
quantum of damages for shortened expectation of life and ruled that damages
under that head are to be moderate and to be measured by a conventional
scale.5 However, this head of damage has now been abolished in England by the
Administration of Justice Act, 1982. According to Winfield, the suffering
experienced by the plaintiff from the awareness that his life expectancy has
been shortened will fall under the head `pain and suffering' and not under the
head `loss of expectation of life.6

In India, however, the Supreme Court followed the rule laid down in Benham v.
Gambling7 and held in the case of Gobald Motor Service Ltd. v. Veluswami, 8 that
damages under this head are assessed by putting a money value on the
prospective balance of happiness in the years the injured might otherwise lived
and having regard to the uncertainties of life and difficulties in assessment, very
moderate sums are awarded. In this case one Rajarathnam, aged 34 years and
well-settled in his medical profession, met with an accident and died three days
after. The Supreme Court awarded Rs. 5000 as compensation for mental
suffering and loss of expectation of life. Similarly, the Mysore High Court in Govt.
of India v. Jeevraj Alva9, followed the decision of the Supreme Court and
awarded Rs. 5000 as damages for the death of a boy aged 10 years. In another
case of

___________________

1. Iqbal Kaur v. Chief of Army Staff, MANU/UP/0099/1978 : AIR 1978 All 417; Union of India v. P.S.

Mahal, AIR 1976 J&K 80; Union of India v. Savita Sharma, AIR 1979 J&K 6.

2. 1935 All ER Rep 200 CA.

3. 1937 AC 826.

4. 1941 AC 157.

5. The normal conventional sum was £ 200 at the time of Benham's case in 1941. It rose with the Pound's

decline to £ 500 in 1967, Yorkshire Elec. Bd. v. Naylor, 1968 AC 529 and by 1973 it was £ 750 in the case

of McCann v. Shephard, (1973) 2 All ER 881.

6. Winfield & Jolowicz Tort, 12th Edn., p. 625.

7. 1941 AC 157.
 8. MANU/SC/0016/1961 : AIR 1962 SC 1.

9. See also R. Lal & D. Lal, 23rd Edn., 1997.

Dhangauriben v. M. Mulchand Bhai1, a scooterist, aged 45 years and wellsettled

in business, was knocked down by a car and killed. The Gujarat High Court
awarded a conventional sum of Rs. 5000 for the shortened expectation of life of
the deceased apart from compensation paid to the widow under the Fatal
Accidents Act.

On the basis of above cases it appears that the courts now consider that the
compensation of Rs. 5000 for shortening expectation of life should be awarded
in every case. It is submitted that the conventional sum of Rs. 5000 as damages
awarded by the Supreme Court in Gobald's case2 in 1962 should have been
increased by the Mysore High Court in 1970 (and so on) in accordance with the
decline in the value of rupee, as was done by the courts in England after
Benham's case.3

2.8. Damages for loss of consortium

In England, a husband is allowed to claim compensation for the loss of

consortium of his wife.4 However, in the event of her death, the husband is not
entitled to claim compensation under this head.5 No such claim is allowed to the
wife when she is deprived of the consortium of her husband.6 In India, a
husband is entitled to claim compensation for the loss of consortium of his wife,
even in the event of her death.7 The question is : Can the wife claim
compensation for the loss of consortium of her husband in India? There is no
case law on the point. However, as logical corollary, it is submitted that the wife
should also be allowed compensation under this head.

3. Injunctions

An injunction is an order of the court directing the doing of some act or restraining the
commission or continuance of some wrongful act. In other words, an injunction is an
order of the court commanding or prohibiting the doing of some act. This remedy is
discretionary; and it will only be granted where it appears to the court to be just and
convenient that it should be. A party may be granted injunctions if he proves either
damage or apprehended damage. The apprehended damage must involve imminent
danger of a substantial kind that will be irrepairable.8 Injunction may be mandatory or
prohibitory;

____________________

1. MANU/GJ/0137/1981 : AIR 1981 Guj 264.

 2. AIR 1970 Mys 340.

3. The normal conventional sum was £ 200 at the time of Benham's case in 1941. It rose with the Pound's

decline to £ 500 in 1967, Yorkshire Elec. Bd. v. Naylor, 1968 AC 529 and by 1973 it was £ 750 in the case

of McCann v. Shephard, (1973) 2 All ER 881.

4. Cutts v. Chumley, (1967) 1 WLR 742; See also Lawrence v. Biddle, (1966) 3 QB 504.

5. Baker v. Bolton, 1808 Camp 493.

6. Bell v. Samuel Fox Ltd., 1952 AC 716.

7. Abdul Kadar v. Kashi Nath, MANU/MH/0150/1968 : AIR 1968 Bom 267; see also, Narayana v. P.

Venugopala, MANU/AP/0085/1976 : AIR 1976 AP 184; Oriental Fire & Ins. Co. v. Chunni Lal, 1969

ACJ 237 (Punj); Padmadevi v. Kabal Singh, MANU/MH/0225/1985 : AIR 1985 Bom 357; State of

West Bengal v. Satish Sharma, 1985 ACJ 271 (Cal); Lakshmamma v. C. Das, 1985 ACJ 199 (Karn); see

also Fatal Accident Act, 1855.

8. Mahadev v. Narayan, (1904) 6 Bom LR 123.

interlocutory or perpetual. These have been defined under section 37 of the Specific
Relief Act, 1963.

3.1. Mandatory and prohibitory injunction

A mandatory injunction is one which is granted to compel the performance of

some positive act, e.g., to compel the defendant to dismantle an existing
structure or to stop earth from sliding onto the plaintiff's land.

A prohibtitory injunction is one which is granted to prohibit the doing of an act

e.g., the erection of a house.

3.2. Interlocutory and perpetual injunction

An interlocutory injunction is a temporary injunction granted to restrain the

commission or continuance of some wrongful act, pending the determination of
an issue in the court. Generally the aim of an interlocutory injunction is to
preserve the status quo until the hearing and to prevent the defendant from
obtaining some advantage pending the full trial of the case.

A perpetual injunction is one which is granted after full trial of the issues at the
final hearing of the action. Hence perpetual injunction is also called final
injunction.

It should be noted that the right of injunction is governed in India by the Specific
Relief Act.1 Grant of temporary injunction is governed by the Civil Procedure
 Code.2

4. Specific restitution of property

Under this remedy the injured party is entitled to recover the specific item of property
itself from the wrongdoer. Thus a person who is wrongfully dispossessed of immovable
property3, or of specific movable property,4 is entitled to recover the same from the
wrongdoer.

_____________________

1. See sections 36 to 42, Specific Relief Act, 1963, regarding withholding or granting of injunction. For

Injunction against Press, see, Reliance Petrochemicals Ltd. v. Indian Express Pvt. Ltd.,
Bombay,MANU/SC/0412/1988 : AIR 1989 SC 190. For injunction against possession, see S.R. Ltd.

Madurai v. S.M. Krishnan, AIR 1990 SC 673.

2. Order 39, Civil Procedure Code. Principles for grant of ex parte injunction, see M.C.D. v. C.L. Batra, JT

1994 (S) SC 241. For grant of interim mandatory injunction, see D.C. Warden v. C.S.
Warden,MANU/SC/0161/1990 : AIR 1990 SC 867.

3. See section 6, Specific Relief Act, 1963.

4. Section 7, Specific Relief Act, 1963.

© Universal law Publishing Co.

   

CHAPTER 27

THE CONSUMER PROTECTION ACT

SYNOPSIS

1. Objects & Reasons

2. Definitions and Scope

2.1. Complainant

2.2. Complaint

2.3. Consumer

3. Illustrative cases: Deficiency in service

 3.1. Airlines

3.2. Bank

3.3. Educational institutions

3.4. Electricity

3.5. Housing construction

3.6. Insurance

3.7. Medical profession

3.8. Legal profession

3.9. Railways

3.10. Telephone

3.11. Other cases

4. Consumer Protection Councils

4.1. Central Consumer Protection Council

4.2. State Consumer Protection Council

5. Consumer Disputes Redressal Agencies

5.1. District Forum

5.2. State Commission

5.3. National Commission

5.4. Miscellaneous Provisions

1. Objects & Reasons

The Consumer Protection Act, 1986 received the assent of the President on Dec. 24,
1986, but came into force on 15th April, 1987 1 The objects of this legislation can be
divided into two parts.

The first part seeks to promote and protect the rights of consumers, viz., (a) the right
to be protected against marketing of goods which are hazardous to life and property;
(b) the right to be informed about the quality, quantity, potency, purity standard and
price of goods to protect the consumer against unfair trade practices; (c) the right to
have, wherever possible, access to goods at competitive prices; (d) the right to be
heard and to be assured that consumers interests will receive due consideration at
appropriate forums; (e) the right to seek redressal against unfair trade practices or
unscrupulous exploitation of consumers; and (f) right to consumer education.

The second part aims at helping the consumers in getting quicker or speedy redressal of
their grievances through specially established quasi-judicial agencies instead of filing a
suit in civil court. No court fee is required for filing the complaint nor there is any need
to engage a lawyer, and the consumer redressal agencies can evolve summary
procedure by observing the rules of natural justice in disposing of the complaint.

The Consumer Protection Act, 1986 contains only 31 sections, covering a large ground
in the jurisprudence of consumer protection rights. The simple procedure coupled with
freedom from the rigours of law of evidence have made it a landmark legislation of the
country. The Supreme Court in the case of Lucknow Development Authority v. M.K.
Gupta,2observed that the importance of the Act lies in promoting welfare of the society
by enabling the consumer to participate directly in the market economy. It attempts to
remove the helplessness of a consumer which he faces against powerful business,
described as network of rackets or a society in which producers have secured power to
rob the rest and the might of public bodies which are degenerating into storehouse of
inaction where papers do not move from one desk to another as a matter of duty and
responsibility but for extraneous considerations leaving the common man helpless,
bewildered and shocked.

The Act undoubtedly aims at removing injustices and wrongs met by consumers who
are now equipped with a legal weapon to fight against these evils.

2. Definitions and Scope

It is common for a statute to contain a provision that certain words and phrases shall
bear the particular meanings. The purpose of a definition clause is

___________________

1 . In view of the Notification published by the Central Govt., Chapters I, II and IV came into force w.e.f.

April 15, 1987 and Chapter III from July 1, 1987. See also, E. Elhence v. Rahomal Nahar Singh (P) Ltd.,

1991 CPD 347 (MC) where it was held "the mere fact that the date of accrual of the cause of action was

prior to the date of coming into force of Chapter III is totally irrelevant and it will operate to deprive the

aggrieved consumer of his right under the Act to seek relief before the statutory redressal forum. See

further Umedilal v. K.K. Nagpal, 1991 CPR 34 (Raj); Ramkali v. Delhi Administration, 1991 CPJ (Del).

2. (1994) 1 SC 243.

to (a) provide a key to the proper interpretation of the enactment and (b) shorten the
language of the enacting part of the statute to avoid repetition of the same words
contained in the definition. When a word is defined in the statute, it shall be understood
in the sense defined unless there is anything repugnant in the context.1 It is, therefore,
necessary to analyse some of these key terms or phrases used in the Act to explain and
elaborate on their legal significance in the context of their interpretation.

2.1. Complainant

Section 2(l)(b) defines complainant. It means:

(i) a consumer; or

(ii) any voluntary consumer association registered under the Companies

Act, 1956 or under any other law for the time being in force; or

(iii) the Central Government or any State Government; or

(iv) one or more consumers, where there are numerous consumers

having the same interest; who or which makes a complaint.

(v) in case of death of a consumer, his legal heir or representative.

Complainant literally means a person who has some grievance or injury and
makes an allegation against another. But the word "complainant" under section
2(l)(b) has a wider connotation than its literal meaning. It includes not only a
`consumer' who has some grievance or injury but also any voluntary consumer
association registered under any law, the Central Government or State
Government or one or more consumers, (where there are numerous consumers
having the same interest) who or which makes the complaint. Thus, any one of
the four can be a complainant. It should therefore be noted that a person
seeking redress before the Consumer Redressal. Forum (under section 12 i.e.,
District Forum, under section 17 i.e., State Commission, or under section 21 i.e.,
National Commission) must come within any of the said four categories;
otherwise he has no locus standi to proceed with his case.

2.2. Complaint

The word `complaint' literally means a grievance, distress, dissatisfaction,

objection, wrong or injury. But in the context of Consumer Protection Act, 1986,
the term complaint has specified meaning and is limited by the definition given
in section 2(1)(c), by which it means any allegation by the complainant in
writing with a view to obtaining any relief in regard to the following matters:

(i) an unfair trade practice or a restrictive trade practice has been

adopted by any trader;

(ii) the goods bought by him or agreed to be bought by him suffer from
 one or more defects;

(iii) the services hired or availed of or agreed to be hired or availed of by

him suffer from deficiency in any respect;

(iv) a trader has charged for the goods mentioned in the complaint a
price in excess of the price fixed by or under any law for the time being in
force or displayed on the goods or any package containing such goods;

__________________

1. See, Pappathi Ammal v. Nallu Pillai, MANU/TN/0200/1963 : AIR 1964 Mad 173 (FB); H.S. Shukla

v. A.D. Divakar, AIR 1957 SC 121.

(v) goods which will be hazardous to life and safety when used, are being
offered for sale to the public in contravention of the provisions of any law
for the time being in force requiring traders to display information in
regard to the contents, manner and effect of use of such goods.

It is thus clear that the expression `complaint' means "an allegation by a

complainant pertaining to either the goods or the services, which he has bought
or hired.1" It may be pointed out here that the expression complaint as defined
in section 2(1)(c) of the Consumer Protection Act does not have the same
meaning as the term `complaint' defined in section 2(d) of the Criminal
Procedure Code. However the term `complaint' as contemplated in the
Consumer Protection Act is equivalent to a `plaint' of a civil suit. A civil suit is
instituted by presenting a plaint in the Court; whereas a case is instituted by
presenting a complaint in the consumer redressal forum. The complaint under
the Consumer Protection Act must contain allegation in writing with a view to
obtaining relief only in relation to the following matters, viz., (i) unfair trade
practice or restricted trade practice adopted by any trader, (ii) defects in the
goods bought, (iii) deficiency in services hired, (iv) charging of price in excess of
the price fixed by or under the law or displayed on goods or package, (v) goods
hazardous to life and property without giving any information as required by the
provisions of any law.

Thus the complaint can be only in relation to the five matters mentioned above.
Let us therefore, discuss the above five matters.

(i) Unfair Trade Practice or Restrictive Trade Practice.—The twin concept of

`unfair trade practice' or `restrictive trade practice' have been inserted by the
Amendment Act, 1993 which are discussed below.

(a) Unfair trade practice.—The expression `unfair trade practice' has

been defined in section 2(l)(r) of the Consumer Protection Act. It means
 a trade practice which, for the purpose of promoting the sale, use or
supply of any goods or for the provision of any service, adopts any unfair
method or unfair or deceptive practice including any of the following
practices mentioned in footnote.2

_______________

1. Prof Inderjit v. Haryana State Electricity Board, 1991 CPJ 115 (Haryana).

2. (1) The practice of making any statement, whether orally or in writing or by visible representation which,

(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style

or model;

(ii) falsely represents that the services are of a particular standard, quality or grade;

(iii) falsely represents any rebuilt, secondhand, renovated, reconditioned or old goods as new goods;

(iv) represents that the goods or services have sponsorship, approval, performance characteristics,

accessories, uses or benefits which such goods or services do not have;

(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or

supplier does not have;

(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or

services;

(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product

or of any goods that is not based on an adequate or proper test thereof.

(viii) makes to the public a representation in a form that purports to be

(i) a warranty or guarantee of a product or of any goods or services; or

(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service

until it has achieved a specified result, if such purported warranty or guarantee or promise is materially

misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried

out,

(ix) materially misleads the public concerning the price at which a products or goods or services have been

or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to

refer to the price at which the product or goods or services has or have been sold by sellers or provided by

suppliers generally in the relevant market unless it is clearly specified to be the price at which the product

has been sold or services have been provided by the person by whom or on whose behalf the

representation is made;
(x) gives false, misleading facts disparaging the goods services or trade of another persons.

Explanation—For the purposes of clause (I), a statement that is—

(a) expressed on an article offered or displayed for sale, or on its wrapper or container; or

(b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for

sale, or on anything on which the article is mounted for display or sale; or

(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever

made available to a member of the public shall be deemed to be a statement made to the public by and

only by the person who had caused the statement to be so expressed, made or contained;

(2) permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or

supply at a bargain price, of goods or a services that are not intended to be offered for sale or supply at the

bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of

the market in which the business is carried on, the nature and size of business, and the nature of

advertisement.

Explanation.—For the purpose of clause (3), "bargaining price" means...

(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or

otherwise, or

(b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a

bargain price having regard to the price at which the product advertised or like products are ordinarily sold;

(3) permits....

(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating

impression that something is being given or offered free of charge when it is fully or partly covered by the

amount charged in the transaction as a whole,

(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or

indirectly, the sale, use or supply of any product or any business interest;

(4) permits the sale or supply of goods intended to be used, or are of a kind likely to be used, by

consumers, knowing or having reason to believe that the goods do not comply with the standards

prescribed by competent authority relating to performance, composition, contents, design, constructions,

finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the

goods;

(5) permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for

sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or intended

to raise, the cost of those or other similar goods or services.

The expression `unfair trade practice' apply to both goods and services. In the
 case of Mantora Oil Products (P) Ltd. v. Oriental Insurance Co.1, the National
Commission held that "from the very terms of the definition of the expression

_______________

1. 1991 CPJ 323 (NC).

`unfair trade practice' contained in section 36A of the M.R.T.P. Act, which has
been made applicable to the Consumer Protection Act by section 2(1)(r), it is
absolutely clear that it applies not merely to sale or supply of any goods but also
to the provisions of any service.

But what is `unfair trade practice' in relation to goods and services under
section 2(l)(r), has been beautifully stated in the case of Godrej and Boyce Mfg.
Co. Ltd. (in re:),1where Luthra J., observed: "It is apparent from a plain reading
of the aforesaid definition that unfair trade practice consists of making any
statement, whether orally or in writing, or by visible representation in respect of
any particular standard, quality or grade of goods, or which amounts to warranty
or guarantee of a product. There is unfair trade practice, if aforesaid such
statement or representation is wrong or false or the warranty or guarantee is
not based on any adequate or proper test. Therefore, the unfair trade practice is
completed as soon as the aforesaid statement is made.

Thus, in the case of D.G., Inv. & Reg. v. Kalaimajal Subha,2 a registered society
engaged in enrolling members by payment of Rs. 4000 each with an assurance
that it would mature to Rs. 16 lakhs in 19 years. It assumed that the land would
appreciate atleast 75 times in 19 years. Held, it amounted to unfair trade
practice. In another case of Godfrey Phillips Ltd. (in re:),3 where a misleading
impression was created by a cigarette company that cigarettes manufactured by
the said company under the brand name `Oxford' ensured a quality
corresponding to the foreign-made cigarettes and that there was a
manufacturing collaboration with the foreign company, it was held to be an
unfair trade practice. Similarly, a registered society claiming to be a non-profit
making educational institution gave promise of post-graduate degrees from New
York and other universities in the United States. It was held that false and
misleading representation were made to extract money from prospective
students, and therefore it amounted to unfair trade practice.4

(b) Restrictive trade practice.—`Restrictive trade practice' has been

defined in section 2(l)(m). It means any trade practice which requires a
consumer to buy, hire or avail of any goods or, as the case may be,
services as a condition precedent for buying, hiring or availing of other
goods or services.
 Thus, in the case of Modern Suiting Ltd. (in re:),5 the offering of equity shares
linked to debenture was held to be prima facie a restrictive trade practice in the
nature of a tieup. Similarly, insisting that a consumer should buy a gas stove
with the release of gas connection amounts to restrictive trade practice or sale
of a back view mirror with the delivery of motorcycle is restrictive trade practice.

________________

1. (1991) 7 Comp Cas 224.

2. (1988) 64 Comp Cas 807.

3. Ibid.

4. D.G., Inv. & Reg. v. Management Profession Association, (1988) 63 Comp Cas 673. See also, B.R. Rao v.

A.M. Ltd., 1991 CPJ 562 (AP) where a trader falsely represented orally or by visible representation any

rebuilt, renovated or reconditioned goods as new goods, it amounted to unfair trade practice.

5. Buddhist Mission Dental College v. Students, 2000 CPJ (NC): (1987) 61 Comp Cas 404.

(ii) `Goods' suffer from defects.—The word `goods' has not been defined in the
Consumer Protection Act. Section 2(l)(i) of the Act simply states that `goods'
means as defined in the Sales of Goods Act, 1930. According to section 2(7) of
the Sale of Goods Act, 1930, `goods' means every kind of movable property
other than actionable claims and money; and includes stock and shares, growing
crops, grass and things attached to or forming part of the land which are agreed
to be severed before sale or under the contract of sale.

The above definition has a very extensive meaning. Goods include every kind of
movable property other than money and actionable claims. Things like goodwill,
copyright trade mark, patents, water etc. are all goods. Things forming part of
or attached to land may be sold as goods provided they are agreed to be
severed under the contract. A court decree can also be sold as goods.1 Goods
also include shares and stock. But money and actionable claims are excluded
from the definition of goods.2

(a) Condition & Warranty.—A condition is a stipulation essential to the

main purpose of the contract, the breach of which gives rise to a right to
treat the contract as repudiated; whereas a warranty is a stipulation
collateral to the main purpose of the contract, the breach of which gives
rise to a claim for damages but not to a right to reject the goods and
treat the contract as repudiated.

(b) Defects in Goods.—The term `defects' has been defined in section

2(1)(f) of the C.P.A. It provides defect' means any fault, imperfection or
 shortcoming in the quality, quantity, potency purity or standard which is
required to be maintained by or under any law for the time being in force
or as is claimed by the traders in any manner whatsoever in relation to
any goods.

The term `defect' in goods means lack or absence of something essential for its
completeness.3 It has been held if there is a shortage in the quantity of goods, it
amounts to defect in goods. Similarly, if the seller fails to deliver the goods
which he agreed to sell, it will be treated as defect. 4 However, a person cannot
be compensated for defect in goods in case of those goods which are safe when
used by normal people, but which cause injury when used by abnormally
sensitive or allergic persons.

(iii) Deficiency in `Service'.—There has to be a `service' in order to succeed in

an action on the `deficiency in service'. The terms `service' has been defined in
section 2(i)(o). It means "service of any description which is made available to
potential users and includes the provision of facilities in connection with banking,
financing, insurance, transport, processing, supply of electrical or other energy,
boarding or lodging or both, housing construction, entertainment,

__________________

1. Vithaldas v. Jagjivan, MANU/MH/0096/1938 : AIR 1939 Bom 84.

2. What about human organs & tissues which can be sold subject to statutory restriction. Bodily product,

such as hair, blood, urine, and genetic materials have developed their own market. Human hair are sold for

wig making and bones for skeltons. See cases : For hair—R. v. Herberg, (1960) 25 Ju Cr L 363; For blood—

R. v. Rothery, 1976 RTR 478; For Urine—R. v. Welsh, 1914 RTR 478, see also Avtar Singh Principles of

Mercantile Law, 6th Edn., 1996.

3. Tate v. Luther, 1897 IQB 502; see also Dr. B.S. Gaba v. Steel Authority of India, 1991 CPJ 631 (Har.)

4. Genl. Co-op. Gp. Housing Society v. J.K. Cement Works, 1991 CPJ 550 (Del).

amusement or the purveying of news or other information, but does not include
the rendering of any service free of charge or under a contract of personal
service."

After passing of the Act, question arose whether `professional' services (like
medical) have also been included in the above definition of `service'. It was held
by the Supreme Court that the words `potential users' mentioned in the
definition were employed to emphasise services which are in public use and
thereby to cover all professions. 1 It would thus mean that the word `service'
also includes all kinds of professional service, except those which have been
specifically excluded from the definition of `Service', viz., (a) where the service
 is rendered `free of charge' and (b) where it is `under a contract of personal
service'.

(a) Free of charge.—The expression `free of charge' in section 2(1)(o)

means when any organisation or person who renders service without any
charge whatsoever to every person availing of the service would not fall
within the ambit of `service', and, consequently, would be exempted
from liability. The payment of a token amount for registration purposes
would, however, not alter the position. But where an organisation or
person charges from rich persons and, not from poor persons, for the
services rendered, that service would not be treated as `free of charge.'
In other words, the service should be free to every person.

(b) Contract of personal service.— This kind of service is also an

exception and therefore exempted from liability under the Act. The
expression `contract of personal service' can not be properly understood
unless the distinction between `contract of service' and `contract for
service', is explained.

The courts in several cases in India,2 as well as in England3 have clarified that

the terms `contract for service' implies a contract whereby one party undertakes
to render service to another in the performance of which he is not subject to
detailed direction, control or supervision; whereas a `contract of service' implies
a relationship of master and servant and involves an obligation to obey orders in
the work to be performed. Thus, whenever there is a relationship of employer
and employee and the services rendered by the employee to the employer in
pursuance of the contract of employment, it will fall within the ambit of
`contract of service'. The word `personal' added as an adjective to the word
`service' in the expression "contract of personal service" under section 2(1)(o)
has created difficulty in its interpretation. It may mean that the contract is
exclusively for private service where the rendering of service is absolutely
discretionary. To this category comes the service of advocates to their clients,
private tutors, etc.4 In

________________

1. Indian Medical Assn. v. V.P. Shantha, MANU/SC/0836/1995 : (1995) 6 SCC 651.

2. Ibid.; See also V.P. Nair v. C. Hospital (P) Ltd., (1991) 2 CPJ; Bhushan v. R. Agarwal, 1991 CPJ 149

(Har); K. Rangaswamy v. Jaya Vittal, 1991 CPJ 685 (Kant).

3. Collins v. H. County Council, 1947 KB 598; Simmons v. Health Laundry Co., (1910) 1 KB 543.

4. Bushan v. Rakesh Agarwal, 1991 CPJ 149 (Har); see also K. Rangaswamy v. Jaya Vittal, 1991 CPJ 685

(Karn) where it was held by the Karnataka State Commission that the service offered by an advocate to his
client is one under a contract of personal service. It cannot be service within the meaning of clause (O).

Hence, the client will not be a consumer within the meaning of section 2 (d) of the Act.

another case of Dr. D.S. Sidhu v. Secretary to Central Govt.1, the complainant
got his pant stitched on payment of stitching charges, but the pant was found
not fit to be worn. The National Commission held that it was not a case of
contract of service and observed that "it is clear that personal service stem from
a master and servant relationship which is totally different from lawyerclient
relationship or other professional or technical relationship. The reason for
excluding such `personal' service under the Act is obvious. Such an employee
can be turned out of service by the master at will, and, therefore, no occasion
can arise for the master to complain about the deficiency in the rendering of
service by the employee. Applying the above test to the present case it will be
clear that the petitioner was not in a position to exercise any sort of control or
supervision over the work of the respondent. The respondent was independent
of any supervision or control of the petitioner while he (i.e., respondent) was
cutting the cloth for stitching the pant or was stitching it. While doing his work
the respondent was bound to obey any direction given by the petitioner about
the design of the pant but not further. Thus the services rendered by the
respondent was in the course of his profession and the service was not rendered
by him under any contract of personal service."

Another opinion on this point is that the expression "contract of personal

service" in section 2(1)(o) of the Act cannot be confined to contracts for
employment of domestic servants only. The expression `personal service' has a
well known legal connotation and has been construed in the context of the right
to seek enforcement of such a contract under the Specific Relief Act. For that
purpose a contract of personal service has been held to cover a civil servant, the
managing agents of a company and a professor in the University. There can be a
contract of personal service if there is relationship of master and servant
between a doctor and the person availing of his services. Therefore, the service
rendered by a Medical Officer to his employer under the contract of employment
would be outside the purview of `service' as defined in section 2(1)(o) of the
Act.2

Thus, on the basis of above discussion it is clear that the words `service'
includes all kinds of professional service, be it the routine service of a barber or
the technical service of a highly qualified person. But it does not include the
service rendered free of charge or `under a contract of personal service'. Thus, a
person will be liable for the deficiency in service except in those cases where the
service has been rendered free of charge or `under a contract of personal
service'. It is, therefore, necessary to know the meaning of the expressions
 `deficiency in service'.

(c) Deficiency.—The term `deficiency' in service has been defined in

section 2(1)(g) of the Consumer Protection Act, 1986. It means any fault,
imperfection, shortcoming or inadequacy in the quality, nature and
manner of performance which is required to be maintained by or under
any law for the time being in force or has been undertaken to be
performed by a person in pursuance of a contract or otherwise in relation
to any service. Thus, fault or negligence in

____________

1. (1991) 2 CPJ 90 (Har): (1991) 2 CPJ 586 (NC).

2. Avtar Singh Principles of Mercantile Law, Sixth Edn., 1996, p. 665.

settling the claim by the insurance company constitutes deficiency 1; or

where the Housing Board inspite of recovering full price failed to hand
over possession within reasonable period, it was held to be a deficiency in
service2; or illegal shifting3 or disconnection4 of telephone has been held
to be deficiency in service; or where a dealer of cars, inspite of receiving
full price, fails to deliver the car within the stipulated period, it was held
to be a deficiency in service5. It may also be pointed out here that if in a
composite contract where the goods have been sold along with an
obligation to render aftersale service, a complaint about deficiency in
after sale service would be maintainable in the same manner as if the
buyer had hired services for a consideration even if those services are
supposed to be free.6 The cases on `deficiency in service' in respect of
`Airlines, Banks, Educational Societies, Electricity, Housing Construction,
Insurance, Legal Profession, Medical Profession, Railways, Telephones
etc. have been discussed in detail in the subsequent pages of this
chapter.

(iv) Trader charged price in excess.—The term `price' has not been defined in
the Consumer Protection Act, 1986. It has been defined in section 2(10) of the
Sales of Goods Act, which provides that price means "the money consideration
for a sale of goods." However, a complaint can be made by the complainant
under section 2(1)(c)(iv) where a trader has charged for the goods mentioned in
the complaint a price in excess of the price fixed by or under any law for the
time being in force or displayed on the goods or any package containing such
goods.

Thus, a complaint can be made against a trader where he has charged price in
excess of the price fixed by or under any law or displayed on the goods or any
 package containing such goods.7 But what about those goods where the price
has neither been fixed by or under the law nor displayed on the goods or
package. Thus, if the goods are not packaged or sold loose from the package
and the trader has charged price in excess, there appears to be no remedy
under the Act. An important case on this point is the case of Manager, Milk
Chilling Centre v. Mahboobnagar Citizens' Council. 8 The facts were that in the
State of Andhra Pradesh there was no law fixing the price at which different
varieties of milk were to be sold, and there was no mention of the price on the
sachets containing the milk sold to the customers in Mahboobnagar because of
the exemption granted under the Standards of Weights and Measures (Packaged
Commodities) Rules, 1977. It was held by the National Commission that "in the
absence of any law requiring an article to be sold at or below a particular price
fixed thereunder

_________________

1. Umedilal v. United India Assurance Co., 1991 CPJ 3 (NC).

2. Kanhaiyalal Mathur v. Rajasthan Housing Board, 1991 CPJ 37 (NC); see also, S. Chadha v. D.D.A., 1991

CPJ 409 (Del); G. Bhanudas v. Chairman, B.D.A., 1991 CPJ 624 (Karn).

3. Commercial Officer, Telecom v. Bihar State Warehousing, Corp., 1991 CPJ 42.

4. N.J. Irani v. G.M., M.T.N.L., Maharashtra, 1991 CPJ (NC).

5. V. Gopalakrishana v. Sanchetti Motors (P) Ltd., 1992 CPR 57 (TN).

6. Punjab Water Supply & Sewage Board v. Udaipur Cement Works, 1995 Supp 4 SCC 117.

7. See, M.O.H.E. Maricar v. J.K. Thomas, (1991) 2 CPJ 30 (TN).

8. 1991 CPJ 219 (NC).

and when there is no declaration of price on the packet containing the goods or
on the goods themselves, the Act does not contemplate that a redressal forum
constituted under its provisions should undertake an investigation of the
reasonableness of the price fixation made by a manufacturer, producer or
dealer. The provision of section 14 of the Act do not contemplate any such relief
being granted by a redressal forum.

Similarly, the correctness or otherwise of bus fare cannot be questioned before

the consumer forum. This was held by the Karnataka State Commission in the
case of Dr. S.P.T. Rao v. M.D., Karnataka State Road Transport Corp.,1 in the
following words:

"The `fixation of fare is a matter to be decided by the State Transport

 Authority subject to the rules made by the Government according to
section 67 of the Motor Vehicles Act, 1939. The correctness or otherwise
of the bus fare fixed by the S.T.A., cannot be questioned before this
Forum and it cannot be decided by the Commission. Charges in respect of
the service cannot be questioned under the Act. It is only excess charges
paid in respect of goods alone contrary to the fare fixed under any law,
that can be ordered to be refunded by this commission. Hence we are
clearly of the view that we cannot grant any relief to the complainant
under the Act."

(v) Goods hazardous to life & safety.—The last ground for which the complaint
can be made has been inserted in section 2(1)(c)(v) by the Amendment Act,
1993 which provides that the goods which will be hazardous to life and safety
when used, are being offered for sale to the public in contravention of the
provisions of any law for the time being in force requiring traders to display
information in regard to the contents, manner and effect of use of such goods.

As has already been stated, the consumer has a right to be protected against
the marketing of goods which are hazardous to life and property, viz. liquor or
cigarettes or adulterated food is dangerous to life or weak cement is danger to
life and property, both. Accordingly, every trader has been required to display
information in regard to the contents, manner and effect of use of such goods. If
a trader sells hazardous goods without displaying the aforesaid information as
required by the provisions of any law, a complaint can be made against him for
redressal before consumer forum.

It is relevant to point out here that the subject-matter of hazardous or

dangerous goods has also been dealt with in the case of Donoghue v.
Stevensons2 and Sons, under the law of tort. Now such matters can also be
taken up before the consumer forums constituted under the Consumer
Protection Act, 1986.

2.3. Consumer

Consumer is the most important person for whom the Consumer Protection Act,
1986 has been enacted. The entire Act revolves round the consumer and is

________________

1. 1991 CPJ 641 (Kan).

2. 1932 AC 562.

designed to protect his interest. The first question therefore is: who is a
consumer? The term consumer has been defined under section 2(1)(d) of the
Act.

It provides that "consumer" means any person who:

(i) buys any goods for a consideration which has been paid or promised
or partly paid and partly promised, or under any system of deferred
payment and includes any user of such goods other than the person who
buys such goods for consideration paid or promised or partly paid or
partly promised, or under any system of deferred payment when such
use is made with the approval of such person, but does not include a
person who obtains such goods for resale or for any commercial purpose;
or

(ii) hires or avails of any services for a consideration which has been paid
or promised or partly paid and partly promised, or under any system of
deferred payment and includes any beneficiary of such services other
than the person who hires or avails of the services for consideration paid
or promised, or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the approval
the first mentioned person.

Explanation: For the purposes of subclause (i), "commercial

purpose" does not include use by a consumer of goods bought and
used by him exclusively for the purpose of earning his livelihood,
by means of self-employment.

If we analyse the concept of `consumer' under section 2(1)(d)(i) and under

section 2(1)(d)(ii), it would appear that there are two distinct types of
consumers—firstly, those who buy any goods for consideration and, secondly,
those who hire any services for consideration. It may be noted that the
definition under section 2(1)(d)(i) extends the concept of consideration not
merely to one actually paid, but one which is merely promised or partly paid or
partly promised and includes within its ambit every system of deferred
payments. The further amplitude given by this provision, which is particularly
noticeable, is the fact that a consumer is not merely the one, who originally buys
goods, but further includes any user of such goods, when such use is made with
the approval of the original purchaser. Similarly section 2(1)(d)(ii) includes not
only the actual hirer of the services but also any beneficiary of such services, if
they are availed with the approval of the first mentioned person.

It would thus be seen that the definition under section 2(1)(d) gives an
altogether new legal colour and scope to the term `consumer', which stands
crystallised by this exhaustive definition. The legislature deliberately extends it
to persons who may have had no privity of contract with the original trader,
manufacturer or the person who had hired out the services. On the other hand,
the definition limits the scope on the context of purchaser of goods, by excluding
from its wide range those persons who buy such goods for resale or for any
commercial purpose, and thus expressly denies them the benefits of the Act.
Thus the Act introduces a new concept and class of consumers, and gives them
a very precise legal connotation. The word `consumer' herein becomes a legal
term of art having a meaning different and distinct from the one used in loose
common parlance. This is the significant development of the Act and a concept
radically different to the earlier and ordinary existing laws in the field.1

In U.T. Chandigarh Administration v. Amarjeet Singh,2 it is held that with

reference to a public auction of existing sites, the purchaser is not a "consumer",
the owner is not a "trader" or "service provider" and the grievance does not
relate to any matter in regard to which a complaint can be filed.

In Sujit Kumar Banerjee v. Rameshwaran,3 the agreement between the parties

was an agreement for construction of a residential building and delivery of an
agreed percentage of the constructed area to the land owners and not a joint
venture agreement. Thus, it is held that the appellant is a consumer and the
respondents are "service providers" and the complaint of the appellant is
maintainable.

The two distinct types of consumer under section 2(1)(d)—(i) those who buy
goods for consideration and (ii) those who hire any services for consideration,
are discussed below.

(i) Those who buy goods for consideration [Section 2(1)(d)(i)].—Under

this category three kinds of persons are treated as consumers, viz., (a)
person buying goods for consideration and consideration having been
paid in full or promised or partly paid or partly promised, (b) person
buying goods under any system of deferred payment, (c) any user of
such goods which has been purchased as aforesaid under (a) or (b) when
such use is made with the approval of the buyer. It may also be noted
that the Act does not insist on money considerations only. Therefore
transactions of barter or exchange or transfer for services will come
within the purview of the Act.

Thus, in Akhil Bhartiya Grahak Panchayat v. Megnna Metals, 4 the complainant

purchased one prestige pressure cooker from the opposite party. In spite of
special gasket release system for safety the cooker burst which resulted in
damage to the right hand of the complainant's wife. The opposite party was held
liable to pay compensation of Rs. 1 lakh plus reimbursement of the medical bills
although wife was the user of goods and not the buyer, but she used the goods
 with the approval of the buyer.

In Motor Sales and Service v. Renji Sabastian, 5 the facts were that the
complainant booked a motor cycle—Hero Honda, for consideration. His turn was
ignored by the dealer. The dealer was directed to give him the vehicle at the
price on the day of his turn and, in addition, he was also directed to pay
compensation of Rs. 500.

___________________

1. Jagdamba Rice Mills v. Union of India, 1991 CPJ 273 (283284) (Har); see also, L.D.A. v. M.K. Gupta,

1994 SCC 243.

2. MANU/SC/0389/2009 : AIR 2009 SC 1607

3. MANU/SC/7790/2008 : AIR 2009 SC 1188.

4. I (1994) CPJ 113.

5. 1991 CPR 158 (Ker). See also Mohan Sharma v. C.B. Co., 1 (1994) CPJ 453; M.G. Panchayat v. Lohia

Machines, 1991 CPJ 26 (NC); Jaidev Prasad v. Auto Tractors, 1991 CPJ 34 (NC); Bharat Tractors v.

Ramchandra, 1991 CPR 50; Chaudhary Automobiles v. Anil Kumar, 1991 CPJ 104; J.D. Sharma v. Maruti

Udyog Ltd., 1991 CPJ 126 (Har); Alankar Cycle Mart v. V.R. Srinivasa, 1991 CPJ 238 (Kant); A.R. Chadha

v. H.K. Ahuja, 1991 CPJ 434 (Del): where it was held that the original manufacturer is not a necessary

party in a complaint against the trader for supply of defective goods.

It may also be pointed out here that a person who obtains or buys goods for
resale or for any commercial purpose is not a consumer within the meaning of
section 2(l)(d)(i).

(a) Those who buy goods for resale or commercial purpose.—As pointed
out above, a person who obtains or buys goods for resale or for any
commercial purpose is not a consumer within the meaning of section 2(1)
(d)(i). Such persons have been excluded from the purview of this Act.
Thus, a purchaser of Taxi for plying it on hire1, or a purchaser of
prototype setting machine for commercial purposes,2 or a purchaser of
BPL VCR for running a video parlour, 3 or purchaser of machines for
setting up an oxygen plant4 or purchaser of an off-set printing machine
for commercial purpose,5 or a purchaser of goods for reselling them6,
were not held to be consumers under section 2(1)(d)(i), and therefore,
they could not get any relief under this Act. The terms `resale' and
`commercial purpose' have not been defined under the Act. In A.K.
Panda v. Bajaj Auto Ltd.,7 the Orissa State Commission held that "the
word commerce is always connected with trade or business. Since that
word `resale' is used, `commercial' is something other than resale. It
 means trade or business the object of which is to make profit. But where
primary object is not to earn profit but to earn livelihood by hard toil and
giving sweat and blood, it cannot be said to be commerce or commercial
purpose." It appears that there are two essential ingredients of the term
`commercial purpose': (a) the goods must have been purchased in some
profit making activity on largescale and (b) there should be a direct and
close nexus between the purchase of goods and the profit making
activity.8 Now, after the amendment Act of 1993, the scope of
`commercial purpose' has become narrower because the goods
purchased and used for self employment has been excluded from the
concept of `commercial purpose'.

(b) Amendment in section 2(1)(d)(i) in 1993.—An explanation has been

added to section 2(1)(d)(i) which reads as follows:

"Explanation.—For the purposes of subclause (i), `commercial

purpose' does not include use by a consumer of goods bought and
used by him exclusively for the purpose of earning his livelihood,
by means of self-employment."9

___________________

1. Western India State Motors v. Sobhagmal, 1991 CPJ 44 (NC).

2. Sterocraft v. Monotype India Ltd., 1991 CPJ III (NC).

3. Astt. Manager, BPL v. S.R. Tushar, 1991 CPJ 155.

4. K.C. Jain v. General Elec. Co., 1991 CPR 286.

5. Oswal Fine Arts v. H.M.T. Madras, 1991 CPJ 330 (NC); see also, Prestige Stores v. Sharma Industries,

1991 CPR 217 (NC); Getanjali Cement Pvt. Ltd. v. Applied Industrial Products, 1991 CPJ 332 where the

complainant got a mini cement plant erected for manufacturing cement, but there was inordinate delay in

its erection and therefore complainant suffered heavy losses. Held, complainant is not a consumer because

the erection of the plant was for commercial production of cement; See also, Jaheed Hussain v. Shah and

Lohia Auto Pvt. Ltd., 1991 (1) CPJ 56.

6. Lohia Sterling Ltd. v. Zenith Computer Ltd., 1991 CPJ 145 (NC) where Zenith Computer system was

purchased for resale. Held, the purchaser was not a consumer.

7. (1992) CPJ 88 (NC).

8. See Annat Raj Agencies v. T.E.L. Co., 1 (1996) CPJ 268 (Del) where the company purchased a car for

private use of its Director. The car had serious defects. The complainant claimed the refund of price with

interest or in the alternative the replacement of car. Held, car was not purchased for profit making, and

there was no nexus between the purchase of the car and profit making activity of the company. The
complainant was held to be a consumer and entitled to relief under the Act.

9. Ins. by Act 50 of 1993 (w.e.f. 1861993).

Thus, where a person purchases a sewing machine, or a taxi, or an

autorickshaw, or a photostat machine or any other goods which are to be used
by him exclusively for the purpose of earning his livelihood by means of self
employment, that will not be considered as `commercial purpose', and such
persons will be a consumers under this Act. In the case of Hindustan Motors Ltd.
v. N.P. Tamankar,1 it was held by the National Commission that the purchaser of
car who himself plies it as a Taxi as a means of self-employment for earning his
livelihood, is a consumer and is entitled to relief under the Act. The explanation
added to section 2(1)(d)(i) in 1993 is merely classificatory in nature and hence
applicable to all pending proceedings.2

(ii) Those who hire services for consideration [Section: 2 (1)(d)(ii)].—The

second category of consumer is `user of services'. Under this category three
kinds of persons are treated as consumers viz., (a) any person who hires any
services for consideration and consideration having been paid in full or promised
or partly paid and partly promised; (b) any person hiring any services under any
system of deferred payment, and (c) any beneficiary of such services which
have been hired as aforesaid under (a) and (b) when such services are availed
of with the approval of the person hiring the services. Thus, three kinds of
persons are treated as `consumers' under section 2(1)(d)(ii). But what is
"service" has been defined under section 2(1)(o):

(a) What is service?.—According to section 2(1)(o), service means

service of any description which is made available to potential users and
includes the provision of facilities in connection with banking, financing,
insurance, transport, processing, supply of electrical or other energy,
boarding or lodging or both, housing construction, entertainment,
amusement or the purveying of news or other information, but does not
include the rendering of any service free of charge or under a contract of
personal service.

What is `service' has been discussed in great detail under the heading
`complaint'. However, on the basis of above definition, it is clear that services
must be of commercial nature in the sense that they must be on payment, which
may be either in cash or kind and which may be made either at once or partly at
once and partly on credit. It may also be noted that the word `service' would
include all kinds of professional service, be it the routine services of a barber or
the technical services of a highly qualified person. The Supreme Court has
observed that the words " potential users" in section 2(l)(o) do not have the
effect of excluding medical services from the purview of the word "service". It
 seems that the words "potential users" were employed to emphasise services
which are in public use and thereby to cover all public profession. 3 Thus, to
enable a consumer to bring an action before a consumer forum, it is necessary
that he must have hired or availed the services for consideration, and that there
was some deficiency in service. What is deficiency in service has been defined in
section 2(1)(g).

________________

1. (1996) CPJ 313 (NC).

2. Laxmi Engg. v. P.S.G. Industrial Institute, MANU/SC/0271/1995 : (1995) 3 SCC 583.

3. Indian Medical Association v. V.P. Shantha, MANU/SC/0836/1995 : (1995) 6 SCC 651.

Deficiency in Service [Section 2(1)(g)].—According to section 2(1)(g), deficiency

means any fault, imperfection, shortcoming or inadequacy in the quality, nature
and manner of performance which is required to be maintained by or under any
law for the time being in force or has been undertaken to be performed by a
person in pursuance of a contract or otherwise in relation to any service.1

3. Illustrative cases: Deficiency in service

3.1. Airlines

Flight departure before time.—In Chief Commercial Officer, Indian Airlines v. P.

Lalchand,2 the complainant purchased the ticket from the Indian Airlines. The
time of departure was mentioned as 10.45 a.m., but the plane left at 9.20 a. m.
and the complainant, who reached the airport at 9.45 a.m. missed the flight.
The District Forum held the opposite party as guilty of deficiency in service.3

Cancellation of flight.—In Satish Bagdoria v. Airdoot International,4 the

complainant purchased a ticket from the respondents, but the flight was
cancelled and the complainant was not informed. The Forum held the
respondent liable to refund the price of the ticket and pay compensation of Rs.
5000 alongwith costs of Rs. 1000.5

Food served in airlines.—In Indian Airlines v. S.N. Sinha, 6 food was served to the
passenger-complainant by the Airlines. While chewing, his gum was injured
because of a piece of metallic wire in the food. The National Commission
awarded compensation of Rs. 2000 for the same.7

3.2. Bank

Dishonouring of Bank Draft/Cheque.—In N.R. Nair v. Branch Manager, State

Bank of India,8 a bank draft was dishonoured because it did not bear the
 signatures of two officials of the issuing bank. The Consumer Forum held it to be

_________________

1. See Deficiency in service under the heading `Complainant', discussed in detail (supra). See H.T. dated 8-

8-2002, p. 7. NCDRC held, court staff can be sued for deficient services.

2. III (1995) CPJ 134.

3. Similarly, in Indian Airlines v. R.K. Upadhyay, 1 (1991) CPJ 206 the complainant alleged delay in flight

from Lucknow to Delhi and also lack of medical facilities to his wife. Consequently she died next day. Indian

Airlines staff was found not negligent and hence no compensation was awarded under sec. 14(a)(d) of the

CPA, 1986; see also, S. Kumar v. Air India, II (1991) CPJ 72; Indian Airlines v. B.B. Dey, 1992 CPJ 183

(NC).

4. III (1996) CPJ 96 (Chand. SCDRC)

5. See also Chander Shekhar v. Chairman, Indian Airlines, III (1995) CPJ 95, where cancellation of flight

from Bangalore to Mangalore due to sudden strike by the technical and engineering staff of the Indian

Airlines was held to be not a deficiency in service as there was no negligence on their part. The complaint

was, therefore, dismissed.

6. 1992 CPJ 62 (NC).

7. See also R.P. Jain v. Sahara India Airlines, III (1995) CPJ 212 (Del SCDRC) where by an oversight

chicken curry was served to a vegetarian airlines passenger, but there was no complaint of vomiting or food

poisoning. His religious sentiments were hurt. The opposite party tendered apology. The mistake was

neither malicious nor physical injury was caused to the complainant. No compensation was allowed by the

Forum. See also, Indian Airlines v. I. Ahir, I (1996) CPJ 326 (NC).

8. I (1991) CPJ 648.

a case of deficiency in service. Similarly, in Sankar v. Vijaya Bank1 it was held

that dishonouring of cheque without justification amounts to deficiency in
service, and the bank was held liable to pay compensation for the same.

Payment despite `Stop Payment'.—In Harjivandas v. Manager, Dena Bank,2 the

complainant issued a cheque of Rs. 1 Lakh in favour of a co-operative society,
and thereafter instructed the bank to stop the payment, but the bank honoured
the cheque. It was held to be a deficiency in service, and the complainant was
held entitled to compensation of Rs. 1 lakh alongwith interest @ 18 % p.a. from
the bank.

3.3. Educational institutions

The imparting of education by an educational institution for a consideration falls

 within the ambit of `service' under the Consumer Protection Act, and if there is
deficiency in service, the institution shall be liable to compensate the loss to the
consumer (student).3 Education is not merely industry but the mother of
industries.4

3.4. Electricity

Defective meter.—In Gita Rani Chakroborty v. S.S.B., W.B.S.E.B., 5 the defective

electricity meter was not replaced inspite of repeated reminders by the
complainant. It was held to be a case of negligence and deficiency in service,
and compensation of Rs. 1000 was awarded to the complainant for harassment
and mental pain caused to him.6

Disruption of electricity.—In Haryana S.E.B. v. T.R. Poultry Farm,7 an electric

transformer got burnt and the same was not replaced for 25 days, whereby the
electric supply to the poultry farm got disrupted. Consequently, 3080 birds in
the poultry farm died. The State Commission found it to be a case of negligence
and deficiency in service and allowed compensation of Rs. 75,000 to the
complainant for the loss of birds. On appeal, the National Commission affirmed
the order of

_______________

1. I (1996) CPJ (Kant SCDRC).

2. II (1997) CPJ (Guj SCDRC); see also, Bal Krishnan v. Canara Bank, III (1995) CPJ 218; Vimal C. Grover
v. Bank of India, MANU/SC/0316/2000 : AIR 2000 SC 2181, where it was held that client was a

consumer when he gets overdraft facility from a bank. Bank could not sell shares within reasonable time

occasioning loss to client. Service rendered by bank is deficient.

3. See M. Ravindranath's case (Kerala) decided by National Commission and reported in `Hindu' on 3rd

Feb., 2002; Madbubrata v. R.K. Panda, 1991 CPR 395 (Ori): City Edn. Calcutta—The Statesman, dt. Oct.

10, 1991; Tilak Raj v. Haryana School Education Board, 1992 CPJ 76; M.D. University v. Shakuntla

Choudhary, 1992 CPJ 33 (Har); A.P. Graies v. Principal, Bharti Vidyapith College of Engg., 1992 CPJ 105

(Mah).

4. Federal School Teachers Association Australia v. State of Victoria, (1929) 41 CLR 569; see also,
University of Delhi v. Ramnath, MANU/SC/0143/1963 : AIR 1963 SC 1873.

5. I (1997) CPJ 450 (WB) SCDRC.

6. See also Raj S.E.B. v. Mohd. Yusuf, III 1995 CPJ 433 (Raj SCDRC), where there was supply of electricity

and the meter installed had totally stopped. This meter remained defective for 3 years. It was held that a

bill on the basis of average consumption could not be raised. The Forum recommended that disciplinary

action be taken against the Asstt. Engineer concerned.

 7. II (1996) CPJ 15 (NC).

the State Commission and also awarded a cost of Rs. 2000 to the
complainantrespondent.1

Fluctuations in Voltage.—In Escon Pvt. Ltd. v. Karnataka Electricity Board 2 it was
held that when an electric supply company fails to supply electric energy at a
particular voltage causing loss to the complainant, it amounts to deficiency in
the supply of energy, no matter whether the energy is being supplied for
commercial purpose or not. It was further stated by the court that if electricity is
supplied for commercial purpose, the complainant is not a consumer under
section 2(1)(d)(ii) of the Act, but maintenance of electricity connection at
minimum charges is a service, and even if supply of energy is for commercial
purpose, complainant is a consumer within the meaning of section 2(l)(d)(ii) of
the Act.

But mere fluctuation in the voltage by itself will not be treated as `deficiency in
service' without proof of negligence.3

3.5. Housing construction

In Kanhaiyalal Mathur v. Rajasthan Housing Board,4 the Board, in spite of

recovering full price, failed to hand over possession of the house within
reasonable period. It was held by the National Commission that the service
rendered by the Board5 suffered from `deficiency'.

3.6. Insurance

Insurance claims.—In Umedilal v. United India Assurance Co.,6 it was held that
fault or negligence in settling the claim by the insurance company constitutes
deficiency. But where the insurance company rejected a claim after investigation
on the ground that the claim was false, it was held by the Forum that such a
controversy between the parties could not be decided by the Forum7. However,
when the policy of insurance becomes inoperative due to the act of the State,
any dispute between the insured and the insurer as to the amount payable to
the insured due to the policy becoming prematurely inoperative cannot be
construed

___________________

1. See also Haryana S.E.B. v. Naresh Kumar, II (1996) CPJ (NC), where illegal disconnection of electric

supply without prior notice and which was restored after two months under the orders of the State

Commission, was held to be deficiency in service. The Board was held liable to compensate the losses

suffered by the complainant due to closure of mill during this period.

 2. 1991 CPJ 450 (Kant); see also Vani Talkies v. Karnataka Electricity Board, 1990 CPJ 226 (Kant).

3. See Karnataka Elec. Board v. Karnataka Citizens Forum, 1991 CPJ 97 (Kant), N.D.M.C. v. S.P. Singha,

1991 CPJ 560 (Del). In this case the complainant's VCR got damaged due to supply of high voltage

electricity from the junction box. But the claim was rejected. See also, Travancore Oxygen Ltd. v. Kerala

S.E.B., 1 (1997) CPJ 17 (NC).

4. 1991 CPJ 37 (NC).

5. See also S. Chandra v. U.P. Avas Evam Vikas Parishad, 1991 CPJ 258; K. Biyani v. Rajasthan Housing

Board, 1991 CPJ 603 (Raj); G. Bhanudas v. Chairman, Bangalore Dev. Authority, 1991 CPJ 624 (Kant);

Sneh Chadha v. D.D.A., 1991 CPJ 409 (Del).

6. 1991 CPJ 3 (NC).

7. Janata Machine Tools v. Oriental Ins. Co. Ltd., 1 (1991) CPJ 234.

as deficiency in service.1 In an important case of National Insurance Co. v. P.P.

Sahani,2 the complainant-respondent got his flat in a multi-storey building
insured with the insurance company. The entire building was sealed by the Chief
Fire Officer due to fire on the 11th floor of the building. As a consequence the
complainant could not get rent of his flat for about 9 months and, therefore,
claimed compensation from the insurance company. The National Commission
held that the loss of rent of the respondent's flat was a proximate and not
remote consequence of fire in the building and, therefore, confirmed the order of
the State Commission. The insurance company was held liable.

3.7. Medical profession

The controversy3 whether the medical services should or should not be covered

by the expression `service' as defined in section 2(1)(o) has been set at rest by
the Supreme Court in the case of Indian Medical Association v. V.P. Shantha,4 by
holding that section 14(1)(d) indicates that the compensation to be awarded is
for loss or injury suffered by the consumer due to the negligence of the opposite
party. A determination about deficiency in service for the purpose of section 2(1)
(g) has, therefore, to be made by applying the same as is applied in an action
for damages for negligence. In view of the definition of 'deficiency' as contained
in section 2(1)(g), medical practitioners must be included within the ambit of the
Act and the service rendered by them is covered under section 2(1)(o).

Thus, a patient aggrieved by any deficiency in treatment, from both private

clinics and Government Hospitals, are entitled to seek damages under the
Consumer Protection Act. The position as emerged in this case is as follows—(1)
Service rendered to patient by a medical practitioner by way of consultation,
diagnosis and treatment, both medical and surgical, would come within the
 ambit of `service' under section 2(1)(o). But where the medical service is
rendered (a) free of charge or (b) under a contract of personal service, 5 that will
not fall within the ambit of `service' under section 2(1)(o). The expression
`contract of personal service' means the services rendered by an employee to
his employer under the contract of personal service. Therefore, the service
rendered by a medical officer to his employer under the contract of employment
would be outside the purview of `service' as defined in section 2(1)(o), of the
Act. The expression `free of charge' in

_______________

1. L.I.C. v. Dr. S. Singh, 1992 CPJ 165 NC.

2. II (1997) CPJ 3 (NC).

3. See V.P. Nair v. V.P. Nair, 1 (1991) CPJ 685 where it was held that patient is a consumer and medical

assistance was a service. But in S.S. Subramaniam v. Kumaraswamy, 1994 CPJ 509, it was held that

medical service is outside the ambit of CPA.

4. III (1995) CPJ 1 (SC): MANU/SC/0836/1995 : AIR 1996 SC 550.

5. There is a distinction between a `contract of service and a' contract for service. A `contract for service'

implies a contract whereby one party undertakes to render services (e.g., technical or professional

services) to or for another in performance of which he is not subject to detailed direction and control but

uses his own knowledge and discretion in the exercise of professional or technical skill. A 'contract' of

service' is a relationship of Master and Servant and involves an obligation to obey orders in the work to be

performed and as to its mode and manner of performance.

section 2(1)(o) means the medical practitioners, private hospitals/nursing

homes and Government hospitals/nursing homes (hereinafter called doctors and
hospitals) who render service without any charge to every person availing of the
service. They would not fall within the ambit of `service' under section 2(1)(o).
It may be noted that the services rendered by the doctors and hospitals, where
charges are required to be paid by persons availing of services, but certain
category of persons who cannot afford to pay are rendered service free of
charge, would also fall within ambit of the expression `service' under section
2(1)(o) irrespective of the fact that part of the service is rendered free of
charge. A few cases on `deficiency in service' and `free service' may be
mentioned.

Thus, where a pair of scissors was left in the stomach of the patient during
operation who died later on1, or where the Uterus of a lady aged forty years was
removed without justification2, or where a patient had some difficulty in passing
urine and his penis was cut off without any justification 3, the surgeons were held
liable to compensate the complainants as they were found to be negligent i.e.,
 deficient in service.

In an important case of Harjot Ahluwalia v. Spring Meadows Hospital 4, the facts

were that Harjot Ahluwalia, the complainant, a minor and the only child of his
parents, had high fever and was taken to Spring Meadows Hospital, New Delhi.
There he was administered certain medicines, and intravenous chloroquine
injection by an unqualified nurse and without prior test. Immediately thereafter,
the child suffered cardiac arrest. No oxygen was given as the oxygen was not
available in the hospital. The child suffered irreparable brain damage, and
consequently went into a vegetable state for the rest of his life. In a landmark
judgment, the Supreme Court upheld the decision of National
5
Commission  where the hospital's negligence was established and it was directed
to pay compensation of Rs. 12.50 lacs to the minor child for brain damage and
Rs. 5 lacs to the parents. It is important to note that the Supreme Court, in this
case, held that the parents of the child were consumers having hired the
services, and the child was `a consumer' as the beneficiary of such services.6

In a very recent case of Sri P. Sudhakar v. Gowri Gopal Hospital (Lawyers

update Feb. 2012 at p. 20) the facts were that Ujwal, a boy of 14 years was
operated for appendicitis on 20-9-1997. The operation was successful and his
general condition was good throughout the day. At about 10 p.m., after an
injection, his condition suddenly worsened. He was put on ventilator and
eventually died on 25-9-1997. It was found by the commission that Fancuran
injection was given by the nurse, who had mistaken it for an analgesic. She
N.C.D.R. commission held the hospital jointly and severally liable to pay a
compensation of Rs. 4 lakhs to the complainant.

There are two more decisions of the Supreme Court on doctor's duty to maintain
secrecy and Homeopath practicing allopathy, which need mention. It is the
general duty of the doctor to maintain secrecy—about his patients. But where
the disclosure of confidentiality was in the interest of others to save their life
from future health risk, no breach of duty was committed i.e., if the fact was not
disclosed by the Hospital, the fiance of the complainant would have been
infected with HIV (+) after her marriage with the complainant. This was held by
the Supreme Court in the case of Dr. Tokugha v. Apollo Hospital Enterprises Ltd.
The right of privacy of the appellant was subject to the right of life of the fiance

_________________

1. Nihal Kaur v. Director, PGI, Chandigarh, III (1996) CPJ 112 (Chand. SCDRC).

2. Lakshmi Rajan v. Malar Hospital Ltd., III (1998) CPJ 586 (TN SCDRC).

3. C. Sivakumar v. Dr. John Arthur, III (1998) CPJ 436 (TN SCDRC).
4. II (1997) CPJ 98 (NC): MANU/SC/1014/1998 : AIR 1998 SC 1801.

5. II (1997) CPJ 98 (NC).

6. MANU/SC/1014/1998 : AIR 1998 SC 1801 (1803).

(lady) to whom the information was disclosed1. In another case of Poonam

Verma v. Ashwin Patel,2 the complainant's husband was administered allopathic
drugs by a registered Homeopath and also intravenous glucose drip without
ascertaining the level of blood sugar. His condition worsened and later on he
died. The Court held that (1) the registered Homeopath trespassed into
prohibited field by giving allopathic treatment and was liable to be prosecuted
under section 15(3) of the Medical Council Act, 1956 and that (2) his conduct
also amounted to actionable negligence for not taking due care, for which, he is
liable to pay compensation amounting to Rs. 3 lacs.

Free services in hospitals and nursing homes.—As discussed above, where

medical services are rendered free of charge to every body, and not to a few,
that will be excluded or will not fall within the ambit of the definition under
section 2(1)(o) and the doctors/hospital will not be liable under the Consumer
Protection Act, 1986. Thus in Paramjit Kaur v. State of Punjab 3, the complainant
was operated in Government hospital free of charge for family planning, but,
later on, she gave birth to a female child. The complainant alleged negligence in
the performance of operation. The complaint was dismissed as the medical
services in the Government hospital were offered free of charge to every body.
Similarly, in the case of Addl. Director, C.G.H.S. v. Dr. R.L. Bhutani, the
complainant, a retired Government Servant, paid Rs. 9 p.m. towards the Central
Government Health Scheme. He and his wife were beneficiaries of CGHS. His
wife was suffering from some ailment for which surgery was performed but,
instead of improvement, she became paralytic. The National Commission held
that services under CGHS are rendered free of charge to every body and under
the contract of service; such services are excluded from section 2(1)(o) and the
complainant was not a consumer within the meaning of section 2(1)(d). Hence
complaint was dismissed. The Court also held that the payment of Rs. 9 p.m.
was only regarding administrative charges and not for treatment. 

It is important to note here that the complainants in the above two cases, could
not get any relief under the provisions of the Consumer Protection Act, 1986,
but in such kinds of cases the relief was available in the law of tort if they would
have filed suits for damages for the tort of negligence in the civil court. Section 3
of the Consumer Protection Act, 1986 provides that the provision of the Act shall
be in addition to and not in derogation of the provisions of any other law for the
time being in force. Thus, the provisions of the Consumer Protection Act, 1986
give the consumer an additional remedy besides those that may be available
 under other existing laws.4

3.8. Legal profession

The Karnataka State Commission in the case of K. Rangaswamy v. Jaya

Vittal,5 has held that the service offered by an advocate to his client is one under
a

__________________

1. III (1998) CPJ 436 (TN SCDRC).

2. II (1996) CPJ 1 (SC): MANU/SC/0530/1996 : AIR 1996 SC 2111.

3. II (1997) CPJ 394 (Punj SCDRC).

4. Consumer & Citizens Forum v. Karnataka Power Corporation, 1994 (I) CPR 130.

5. 1991 CPJ 685 (Karn); see also Bushan v. Rakesh Agarwal, 1991 CPJ 149 (Har).

contract of personal service. It cannot be service within the meaning of clause

(o). Hence, the client will not be a consumer within the meaning of section 2(d)
of the Act. But the National Commission in the case of R.R. Pal Gupta v.
Ranjana,1 has observed that nonappearance of a lawyer in a court or tribunal,
after being engaged and having charged his fee could itself be deficiency in
service on his part.

3.9. Railways

Passenger's death.—In Union of India v. Nathmal Hansaria2, the facts were that
Kabita Hansaria, the daughter of the complainants, fell down while passing
through interconnecting passage in the Tinsukhia Mail train and died. The
interconnecting passage was not protected by any grill. The State Commission
awarded compensation of Rs. 2 lacs for death of Kabita and Rs. 25,000 for
mental agony etc., to the parents on account of deficiency in service. On appeal,
the National Commission upheld the decision of the State Commission and also
held that the death was accidental and not by railway accident and that the
jurisdiction of the consumer fora was not barred under sections 13 and 15 of the
Railway Claims Tribunal Act, 1987.

Reserved accommodation not available.—In Anil Gupta v. G.M., Northern

Railway,3 the complainant got two berths reserved in IInd Class AC, on certain
day, but when he reached the station, the berths were not available. It was held
to be deficiency in service by the railways, and compensation of Rs. 2000 was
awarded for the mental agony and discomfort caused due to nonavailability of
 berths.

Departure of train late by 10 hours.—In Union of India v. K.N. Jena,4 the

complainant got two berths reserved in Gauhati Express from Cuttack to
Bangalore to take his son for treatment there. The train was to leave Cuttack at
10.30 p.m. on 9-6-90, but it started at 9 a.m. on 10-6-90. The Railways'
authorities failed to disclose the reasons for the delay. It was held to be a
deficiency in service and each of the complainants was awarded compensation of
Rs. 500 for the inconvenience and expenses for hiring a lodging room.

Platform without light.—In G.M.N. Rlys. v. R.P. Singh,5 the complainant travelled

in a train from Muzaffarpur to Turkey. When the train reached Turkey railway
station, he tried to alight from the train in the darkness, but the train started
without a whistle. He fell down and his legs were cut off by the wheels

____________________

1. Revision petition No. 1051 of 2001 & Judgment delivered by Justice Wadhwa, (President) N.C.D.R.C. on
3rd Oct., 2001; see also Kumari Poonam v. Phool Chand, MANU/UP/0004/1995 : AIR 1995 All 5,

where an advocate's clerk, to whom the brief was entrusted for filing, did not file and consequently the

period of limitations expired, the clerk was held liable under the Consumer Protection Act for rendering a

deficient service due to the fact that he renders service for consideration. See also liability of an advocate

under law of tort in the chapter on `Negligence'.

2. I (1991) CPJ 308.

3. II (1991) CPJ 308.

4. III (1997) CPJ 198 (Ori SCDRC).

5. III (1998) CPJ 442 (Bih SCDRC).

of the train. It was held to be deficiency in service and the railway was held
liable.

3.10. Telephone

Telephone disconnection.—In Distt. Engineer, Telecom v. Dr. T.N. Sharma,1 the

complainant paid the dues of the telephone bill after the due date. Twenty two
days after this payment, the telephone was disconnected without any notice or
reminder on phone. The disconnection continued for 15 days. Holding it to be a
deficiency in service, the District Forum awarded Rs. 800 as economic loss and
Rs. 2000 as compensation for mental distress, agony and loss of reputation.

In U.C. Patnaik v. Rajkishore,2 disconnection of telephone for unrevealed

outstanding arrears amounts to deficiency in service. Accordingly, disconnection
 was ordered for restoration without any reconnection charge within 15 days,
failing which for each day of default the complainant was to be paid
compensation of Rs. 30 per day.

In Konarak Gas v. C.G.M. Telecom Department, 3 the materials on record prima

facie indicated that there was a dispute regarding telephone bills and there was
no prohibition for the Telecom department to refer the dispute to arbitration,
disconnection of telephone was held to be a deficiency in service.

Delayed installation of telephone.—In Telephone Department, Jalandhar v. Om

Prakash,4 there was undue delay in the installation of telephone. After
installation of the phone, there was further delay in making the telephone
operative. It was held to be deficiency in service and the telephone department
was held liable. Similarly in the Mahanagar Telephone Nigam v. V.
Karkare,5 where telephone complaint remains unattended for over six months, it
was held to be a deficiency in service and the telephone department was held
liable although the complainant was the user and not the subscriber of the
telephone. In another case, the telephone of the complainant remained out of
order for around five weeks in spite of the complaint during this period. The
National Commission awarded Rs. 20,000 as compensation and Rs. 2000 as
litigation cost for the deficiency in service.6

3.11. Other cases

A student is considered as consumer of service of educational institution 7 and,

therefore undue delay in declaration of examination result is a deficiency in
service.8 A pensioner is a consumer and, therefore, the amount claimed by him
on medical treatment was reimbursed to him alongwith compensation and
litigations cost.1 A licencee of the parking area was held liable for the car of the

________________

1. 1995 CPJ 225.

2. 1992 CPR 107 (TN).

3. 1992 CPR 22 (Ori).

4. III (1996) CPJ 479 (Punj SCDRC)

5. II (1991) CPJ 655.

6. H.K.L. Bombay v. B.S.N.L. (Punjab), N.C., reported in Hindustan Times, Feb., 11, 2002, p. 1

7. S.Y. Rode v. Shri R. Engg. College, 1993 (III) CPR 624.

 8. Secretary, Board of School Education, Haryana v. M. Chand, 1994 (1) CPR 269.

complainant stolen from the parking area2; Failure on the part of post office to
carry a speed post message within the expected time is in the nature of a
deficient service.3It was held that if somebody does not perform his part of
contract, it amounts to deficiency in service.4 On the other hand, a licensee to
run a telephone is not a consumer5; a person who merely applies for allotment
of shares is not a consumer;6 the beneficial consumer jurisdiction cannot be
extended to lotteries and wagering transactions or any consequential right
flowing from void contracts.7

A lottery ticket holder is, therefore, not a `consumer', within the ambit of the
definition of consumer under the Act;8 the agreement for hypothecation does not
create the ownership right, and as such no complaint can be entertained or
maintained for deficiency in service.9

Provisions of C.P.A. are additional.—Section 3 of the Consumer Protection Act,

1986 provides that "the provisions of this Act shall be in addition to and not in
derogation of the provisions of any other law for the time being in force." Thus,
in Maharishi Dayanand University v. Shakuntala Chaudhry,10 where the result of
the complainant was declared by the respondent University by giving wrong
particulars in her result, it was held by the State Commission that section 27 of
the M.D. University Act, which grants immunity from a legal action for the acts
done in good faith by its officials, is no bar against remedies available to the
complainant under the Consumer Protection Act. Hence the complainant was
awarded compensation of Rs. 500.

Another worth mentioning case is that of C. & C. Forum v. Karnataka Power

Corporation,11 where it was held that the remedy provided under the Act is in
addition to the provisions of any other law for the time being in force. The
provisions of this Act give the consumer an additional remedy besides those that
may be available under any other existing laws.

Alternative Remedy.—In Ram Nath v. Improvement Trust Bathinda 12, it has been
held that the arbitration clause in not a bar to the entertainment of the
complaint by the redressal agency constituted under the Act, even if the
arbitration provision has been laid down in a statute. Similarly in the case of
Commercial Officer v. Bihar State Warehousing Corporation1, the Consumer
Forum

___________________

1. Director of Pension, Rajasthan Govt. v. G.K. Joshi, 2002 CPJ (AC).

2. Airport Authority of India v. A. Kumar, 1997 (I) CPJ 247 (Del SCDRC).

3. Superintendent of Post Offices v. Grahak Parishad, 1991 (II) CPJ 490 (Guj).

4. R. Roy v. R.N. Sen, (1994) I CPR 66.

5. Technocombine Associates v. Union of India, 1994 (I) CPJ 481.

6. H.G. Bhatia v. ABC Computers Pvt. Ltd., 1994 (I) CPR 316.

7. J. Chand v. Sikkim State Lotteries, 1994 (I) CPR 213.

8. Ibid.

9. J.K. Chauhan v. National Ins. Co. Ltd., 1994 (I) CPR 390.

10. 1992 CPC 41

11. 1994 (I) CPR 130.

12. 1994 (I) CPR 357.

held that the existence of alternative remedy under the Arbitration Act, 1940
does not debar a consumer to have redress under the Consumer Protection Act,
1986.

Jurisdiction of Consumer Forum Barred.—The jurisdiction of the Consumer

Forum is barred in the following matters:

(i) When a case is pending in a civil court, the consumer forums

constituted under the Consumer Protection Act, 1986 should not
entertain the complaint with respect to the same cause of action.2

(ii) Section 15 of the Railway Claims Tribunal Act, 1987, provides that "no
court or other authority shall have, or be entitled to exercise any
jurisdiction, powers or authority in relation to the matters referred to in
subsection (1) of section 13.3 Thus, section 15 of the R.C.T.A., 1987
completely ousts the jurisdiction of the court and other authority in all
the matters referred to in section 13(1) of the Act. A question arose
whether the jurisdiction of the Consumer Forum is also ousted
particularly when section 3 of the Consumer Protection Act, 1986
provides that the provisions of the Act are in addition to, and not in
derogation of any another law for the time being in force. This question
was considered in the case of Nathmal Ashok Kumar v. Western
Railway,4 where Justice Lodha observed: The words "any other law for
the time being in force" mean any other law which was in force on the
date when the Consumer Protection Act, 1986, became operative. The
 Consumer Protection Act was enacted on 24-12-1986 but it was enforced
with effect from April 15, 1987. The Railway Claim Tribunal Act was
enacted on December 23, 1987, but it was enforced w.e.f. Nov. 8, 1989.
Accordingly, the provisions of the R.C.T.A., 1887 were not "for the time
being in force" on 15-4-1987 when Consumer Protection Act became
operative. The Railway Claims Tribunal Act, 1987, is independent of the
Consumer Protection Act, 1986, and being a later statute, the consumer
redressal agencies cannot encroach upon the jurisdiction of the Railway
Claims Tribunal established under the R.C.T.

_________________

1. 1994 (I) CPR 357.

2. I (1991) CPJ 42; Hanuman Prasad v. New India Ins. Co., (1994) I CPJ 1 (NC), where the National

Commission observed: It is nowhere laid down that whenever the examination and cross-examination is

involved, the proper forum for adjudication of the dispute is only civil court.

3. Section 13, Railway Claims Tribunal Act, 1987 provides: "Jurisdiction, Powers and authority of Claims

Tribunal ... (1) The Claim Tribunal shall exercise, on and from the appointed day, all such jurisdiction,

powers and authority as were exercisable immediately before that day by any civil court or a claims

Commissioner appointed under the provisions of the Railways Act. (a) relating to the responsibility of the

railway administrations as carriers under Chapter vii of Railways Act in respect of claims for (i)

compensation for loss, destruction, damage, deterioration or nondelivery or animals or goods entrusted to a

railway administration for carriage by railway; (ii) compensation payable under section 82A of the Railways

Act or the rules made thereunder; and (b) in respect of the claims for refund of fares or part thereof or

refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried

by railway. (2) The provision of the Railways Act and rules made thereunder shall, so far as may be

applicable to the inquiring into or determining any claims by the claims tribunal under this Act.

4. 1991 CPJ 618 Raj 81.

Similarly, in the case of Bhanwarlal v. Station Supdt. Railway1, Rahur, there was
inordinate delay in transit resulting in deterioration of the goods and loss to the
claimant. It was held by the Rajasthan State Commission that "the provisions of
section 3 are of no help to the complainant as section 15 of the Railway Claims
Tribunal Act completely bars the jurisdiction of the court or the authority in
relation to matters referred to in section 13(1) of the said Act. The redressal
Forums have no jurisdiction to entertain, try and hear the complaints relating to
the matters enumerated in subsection (1) of section 13 of the Act of 1987".

Thus, the conclusion boils down to this: Section 3 of the Consumer Protection
Act, 1986 cannot be of any avail, for section 13 of R.C.T. Act, 1987, completely
ousts the jurisdiction of the court and any other authority in respect of those
 matters enumerated in section 13(1) of the R.C.T. Act, 1987.2 Similarly where
the complainant has chosen M.R.T.P forum for seeking relief of his grievances,
he can not invoke the jurisdiction of the District Forum in respect of the same
matter.3

4. Consumer Protection Councils

In Chapter II of the Act, provisions have been made to establish Consumer Protection
Councils at the Central as well as State levels by the respective governments in order to
promote and protect the interest of Consumers. The composition, objects etc. of these
councils are discussed as under.

4.1. Central Consumer Protection Council

Section 4 of the Consumer Protection Act, 1986 requires the Central

Government to establish by notification a Council to be known as the Central
Consumer Protection Council (hereinafter referred to as Central Council).

The Central Council shall consist of the following members:

(a) the Minister-in-charge of the Consumer affairs in the Central

Government, who shall be its Chairman; and

(b) such number of other official or non-official members representing

such interests as may be prescribed.

The appointment of official and nonofficial members have thus been left to the
rule making power of the Government. Accordingly, Central Government issued
a notification containing a set of rules in 1987.4 Rule 3 of the Consumer
Protection Rules, 1987, deals with the constitution of Central Council. It provides
that the Central Council shall consist of the following 150 members:

_________________

1. (1991) 2 CPJ 248 Raj.

2. It is important to note that in certain cases of railways which do not fall within the ambit of sec. 13(1) of

R.C.T. Act, 1987, the consumer forums still have jurisdiction and can award compensation etc. for

"deficiency in service: For example, see, Union of India v. Nathmal Hansaria, I (1997) CPJ 308; Anil Gupta

v. G.M. Northern Railways, II (1991) CPJ 308; Union of India v. K.N. Jena, III (1997) CPJ 198 (Ori SCDRC)

G.M.N. Rlys. v. R.P. Singh, II (1998) CPJ 4442 (Bihar SCDRC) etc., discussed supra.

3. Byford v. Ramesh Taneja, 1991 CPJ 586 Del.

4. In exercise of powers conferred by sec. 30(1) of the CPA, 1986 the Central Government issued a set of

rules. See G.S.R. 398(E) of April 15, 1987, which have been published in the Gazette of India, Extra., Pt. II
of April 15, 1987.

It provides that the Central Council shall consists of the following members not
exceeding 35, namely;—

(a) Chairman

• The Minister-in-charge of Consumer Affairs in the Central Government

shall be the Chairman of the Central Council.

(b) Vice-Chairman

• the Minister of State (Where he is not holding independent charge) on

Deputy Minister in-charge of Consumer Affairs in the Central
Government, shall be the Vice-Chairman of the Central Council.

(c) Members

• The Minister in-charge of Consumer Affairs of two of the States from

each region as mentioned in Schedule I to be changed by rotation on
expiration of the term of the Council on each occasion;

• An administrator (whether designated as administrator or Lieutenant

Governor), of a Union Territory, to represent a Union Territory, as
mentioned in Schedule II, to be changed by rotation on expiration of the
term of the Council on each occasion;

• Two Members of Parliament—one from the Lok Sabha and one from the
Rajya Sabha;

• Representatives of the Central Government Departments and

autonomous organisation concerned with consumer interests—not
exceeding five;

• The Registrar, National Consumer Disputes Redressal Commission, New

Delhi;

• Representatives of Consumer Organisations from amongst the Indian

members of the International Organisation, namely, Consumer
International— not exceeding six, to be nominated by the Central
Government;

• Representatives with proven expertise and experience who are capable

of representing consumer interests, drawn from amongst consumer
organisatons, consumer activists, woman farmers, trade and industry—
not exceeding five, one from each of the regions specified in Schedule
 annexed to these rules;

• The Secretaries in-charge of Consumer Affairs in the States to be

nominated by the Central Government—not exceeding three;

• The Secretary in-charge of Consumer Affairs in the Central Government

shall be the Member-Secretary of the Central Council.

Term of the Council.—The term of the Council is three years.1 However, any

member may resign by submitting his written resignation to the Chairman of the
Council. The vacancy so caused or otherwise, shall be filled in from the same
category by the Central Government. Such person shall hold office so long as
the member whose place he fills would have been entitled to hold office i.e., for
the remaining period.

Procedure of the Central Council.—The Central Council shall observe the

specified procedure in regard to the transactions of its business.2

_______________

1. Rule 3, Consumer Protection Rules, 1987.

2. Rule 4, of the Consumer Protection Rules, 1987.

The meeting of the Central Council shall be presided over by the Chairman. In
the absence of the Chairman, the ViceChairman shall preside. However, in the
absence of the Chairman and the ViceChairman, the Central Council shall elect a
member to preside over that meeting of the council.

Each meeting of the council shall be called by giving ten days' notice to the
members. Every notice shall specify the place and the day and hour of the
meeting and shall contain statement of business to be transacted thereat.

Its proceedings shall not be invalid because of any vacancy or any defect in the
constitution of the council.

The council is authorised to constitute working groups from amongst its

members and every working group so constituted shall perform such functions
as are assigned to it by the Central Council. The findings of such working groups
shall be placed before the Council for its consideration.

The resolution passed by the council are of recommendatory nature.

The Council may hold meetings as and when necessary but it must hold at least
one meeting in a year. The council shall meet at such time and place as the
Chairman may think fit.1
 Objects of the Central Council.—According to section 6 of the Act, the objects of
the Central Council shall be to promote and protect the rights of the consumers
such as, (a) the right to be protected against the marketing of goods which are
hazardous to life and property; (b) the right to be informed about the quality,
quantity, potency, purity, standard and price of goods or services, as the case
may be, so as to protect the consumer against unfair trade practices; (c) the
right to be assured, wherever possible, access to a variety of goods or services,
as the case may be, at competitive prices; (d) the right to be heard and to be
assured that consumers interests will receive due consideration at appropriate
forums; (e) the right to seek redressal against unfair trade practices or
restrictive trade practices or unscrupulous exploitation of consumers; and (f) the
right to consumer education.

Thus, section 6 enumerates the above objects of the Central Council and clearly
indicates recognition of the rights of the consumers. The Central Council is
specially saddled with certain duties to protect and promote the interest of the
consumers. But the significant drawback in the legislation is the toothlessness of
the Central as well as the State Councils. The resolutions of the Council are only
of recommendatory nature. Again, the Councils cannot file a complaint before
the consumer forums even if the consumer's rights, the protection of which falls
within the domain of the council, are in jeopardy. Even the Central or the State
Government cannot file a complaint on behalf of the aggrieved consumer. 2 His
(consumer's) remedy lies in filing complaint before the consumer forum. A
consumer forum cannot dispose of a complaint without hearing the complainant
and it is also obligatory on the part of the consumer forums to take into account
the allegations levelled by the complainant against the opposite party. The
National Commission in the case of Distt. Manager, Telephones v. Dr. Tarun
Bharthari,3 has held that the consumer forum can grant reliefs which are even
not prayed for by the complainant.

_______________

1. Section 5 of the CPA, 1986.

2. See clause (c) Sec. 12 of the CPA.

3. 1991 CPR 171 (NC).

4.2. State Consumer Protection Council

Section 7 of the Consumer Protection Act authorises the State Governments to

establish the State Consumer Protection Councils in their respective States.
Rules as to composition etc. are to be formulated by the State Government. The
objects of the State Councils 1 are the same as that of the Central Council which
 have been enumerated in section 6 of the Act.

5. Consumer Disputes Redressal Agencies

As has been seen, the Consumer Protection Councils are only recommendatory bodies
and are toothless. These Councils cannot give any relief to a consumer if he has any
complaint or dispute2 in relation to the goods bought or services hired. The only agency
which can give relief to a consumer under the Consumer Protection Act is the consumer
disputes redressal forum. This Forum has been created to render cheaper and quicker
justice to the consumers because, prior to the Consumer Protection Act justice or
remedy available to the Consumer in the Civil Courts was very expensive and dilatory.
Under section 9 of the Consumer Protection Act, 1986, the following consumer disputes
redressal agencies, have been established:

1. A Consumer Disputes Redressal Forum to be known as "District Forum". This

forum is established by the State Government.

2. A Consumer Disputes Redressal Commission to be known as the "State

Commission." This is also established by the State Government.

3. A National Consumer Disputes Redressal Commission, i.e., National

Commission. This is established by the Central Government.

The Act thus establishes a hierarchy of three redressal forums:

(i) District Forums

(ii) State Commissions.

(iii) National Commission.

5.1. District Forum

Composition of District Forum (Section 10) The District Forum shall consist of

the following:

(a) A person who is or has been or is qualified to be a District Judge, who

shall be its President.

(b) two other members, one of whom shall be a woman, who shall have
the following qualifications, namely:—

(i) be not less than thirty-five years of age,

(ii) possess a bachelor's degree from a recongnised university,

(iii) be persons of ability, integrity and standing, and have

 adequate knowledge and experience of at least ten years in
dealing with problems relating to economics, law commerce,
accountancy, industry, public affairs or administration:

______________

1. Section 8 of the CPA.

2. Section 2(10)(e) `consumer disputes' means a dispute where the person against whom a complaint has

been made, denies or disputes the allegations contained in the complaint.

Provided that a persons shall be disqualified for

appointment as a member, if he—

(a) has been convicted and sentenced to

imprisonment for an offence which, in the opinion of
the State Government, involves moral turpitude; or

(b) is an undischarged insolvent; or

(c) is of unsound mind and stands so declared by a

competent court; or

(d) has been removed or dismissed from the service

of the Government or a body corporate owned or
controlled by the Government; or

(e) has, in the opinion of the State Government,

such financial or other interest as is likely to affect
prejudicially the discharge by him of his functions as
a member; or

(f) has such other disqualifications as may be

prescribed by the State Government.

Procedure of Appointment.—Every appointment as mentioned above shall be

made by the State Government on the recommendation of a Selection
Committee. This committee shall consist of the following:1

(i) President of the State Commission;

(ii) Secretary of the Law Department of the State;

(iii) Secretary in-charge of the Department dealing with Consumer Affairs

in the State.

Terms & Conditions of Office.—The members of the District Forum shall hold
 office for a term of five years or up to the age of 65 years whichever is earlier
and shall not be eligible for reappointment. However, a member may resign his
office before the expiry of the term, and the Government on accepting his
resignation may fill the vacancy from among persons who belong to that
category.2

The salary or honorarium and other allowances payable to, and the other terms
and conditions of service of the members of the District Forum shall be such as
may be prescribed by the State Government.3

Jurisdiction of District Forum (Section 11)

Pecuniary Jurisdiction.—The District Forum shall have jurisdiction to entertain

complaints where the value of the goods or services and the compensation, if
any, claimed does not exceed rupees twenty lakhs.4

Territorial Jurisdiction.—A complaint shall be instituted in a District Forum within

the local limits of whose jurisdiction.—

_____________

1. Ins. by Act 50 of 1993, sec. 8 (w.e.f. 18-6-95).

2. Section 11(2) of the CPA.

3. Section 11(3) of the CPA.

4. In the case of B.S. Gaba v. Steel Authority of India Ltd., 1991 CPJ 631 (Har), it was held that pecuniary

jurisdiction depends upon the amount of relief claimed, and not upon the value of goods or services, nor

upon the relief allowed by the Forum. See also Frock Haji Ismail Saya v. Gava Bhai Bhesania, (1991) 2 CPJ

452 Guj; Akhil Bhartiya Grahak Panchayat v. Chairman, Life Ins. Corp., 1991 CPJ 171 Mah. In this case the

claim was for Rs. 3,67,000 but Commission allowed Rs. 20,000 only.

(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 carries on business or has a branch office or
personally works for gain,1 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 carries on business or has branch office, or 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 carry on business or
have a branch office, or personally work for gain as the case may be
acquiesce in such institution; or
 (c) the cause of action, wholly or in part, arises.2

Thus, a complaint can be filed either at the place where the opposite party
resides or where each or whole number of the opposite parties reside or carry on
business or at the place where the cause of action arises. It has been held by
the Rajasthan State Commission that the District Forum can entertain a common
cause petition for award of compensation of Rs. 20,000 to each person who
suffered from jaundice and also rupees one lakh to the parents of every
deceased person.3 It has also been held that in the case of manufactured goods,
apart from the place of manufacture, the cause of action arises also at the place
where the goods are marketed.4 It may also be noted that objections regarding
territorial jurisdiction should be taken at the earliest opportunity or the same
deemed to have been waited.5

Who can file complaint (Section 12)

A complaint6 in relation to any goods sold or delivered or agreed to be sold or

delivered or any service provided or agreed to be provided may be filed with the
District Forum by any of the following:

(a) the consumer7 to whom such goods are sold or delivered or agreed to
be sold or delivered or such service provided or agreed to be provided;

(b) any recognised consumer association whether the consumer to whom

the goods sold or delivered or agreed to be sold or delivered or service

______________________

1. The objections regarding territorial jurisdiction should be taken at the earliest opportunity or the same

will be deemed to have been waived; Kurukshetra University v. Vinay Prakash Verma, II (1993) CPJ 647;

See also, Indian Airlines Corp. v. Consumer Education and Research Society, (1992) 1 CPR 4 (NC) where it

has been specifically held that in the case of a company or corporation, complaint would lie at the principal

place of business or at the place of subordinate office.

2. In Union of India v. K.K. Bhatt, 1991 (II) CPJ 474 (Del), the ticket money was paid at Delhi for a journey

from Bombay to Delhi. It was held that the Delhi Forum had jurisdiction because payment there constituted

part of the cause of action. In M.O. Hasan v. J.K. Thomas, (1991) 1 CPR 650 Mad, where a car was booked

at Pondicherry but delivery was effected at Madras, the Forum had jurisdiction at Madras.

3. Upbhokta Sanrakshan Samiti v. Pub. Health Engg. Deptt., 1991 (II) CPJ 321 (Raj), where the disease

was caused by the supply of contaminated water.

4. State of Punjab v. Nanak Chand, MANU/SC/0120/1984 : (1984) 3 SCC 512; Tulsi Enterprises v.

A.P. State Consumer Commission, MANU/AP/0055/1991 : AIR 1991 AP 326; M.D.A. v. Union of

India, AIR 1993 Cal 4.

5. Kurukshetra University v. V.P. Verma, 1993 (II) CPJ 647.

6. Complaint is defined in sec. 2(1) (c) of the Act and has been discussed in detail, supra.

7. The term `consumer' is defined in sec. 2(1)(d) and has been discussed in great detail under the heading

`consumer', supra.

provided or agreed to be provided is a member of such association

or not;

(c) one or more consumers, where there are numerous consumers having
the same interest, with the permission of the District Forum, on behalf of,
or for the benefit of, all consumers so interested; or

(d) the Central or the State Government.

For the purpose of above provisions, "recognised consumer association" means

any voluntary consumer association registered under the Companies Act, 1956
or any other law for the time being in force.

Grounds of Making complaint.—It is important to note that the above persons or

bodies, who are termed as complainant,1 can file the complaint in relation to
goods bought or services hired etc. in the consumer redressal forum only on the
grounds that (a) there was a loss or damage due to unfair or restrictive trade
practice adopted by the trader; (ii) the goods suffer from one or more defects;
(iii) services suffer from deficiency; (iv) the trader charged for the goods an
excess of price; or (v) the sale of hazardous goods in contravention of the
provisions of law.2

Procedure on admission of complaint (Section 13)

The District Forum has to observe the procedure as mentioned in section 13 of

the Consumer Protection Act. On admission of a complaint, the District Forum
shall—

(a) refer a copy of the admitted complaint, within twenty-one days from
the date of its admission to the opposite party mentioned in the
complaint directing him to give his version of the case within a period of
thirty days or such extended period not exceeding fifteen days as may be
granted by the District Forum.

(b) where the opposite party on receipt of a complaint referred to him

denies or disputes the allegations contained in the complaint, or omits or
fails to take any action to represent his case within the time given by the
District Forum, the District Forum shall proceed to settle the consumer
 dispute in the following manner:—

(i) Where the complaint alleges a defect in the goods which cannot
be determined without proper analysis or test of the goods, the
District Forum shall obtain a sample of the goods from the
complainant, seal it and authenticate it in the manner prescribed
and refer the sample so sealed to the appropriate laboratory along
with a direction that such laboratory make an analysis or test,
whichever may be necessary, with a view to finding out whether
such goods suffer from any defect alleged in the complaint or from
any other defect and to report its finding thereon to the District
Forum within a period of forty-five days of the receipt of the
reference or within such extended period as may be granted by
the District Forum;

_________________

1. Complainant is defined in sec. 2(1)(b).

2. These five points (i) to (v) have been discussed in great detail under the heading `complainant', supra.

(ii) before any sample of the goods is referred to any appropriate

laboratory, the District Forum may require the complainant to
deposit to the credit of the Forum such fees as may be specified,
for payment to the appropriate laboratory for carrying out the
necessary analysis or test in relation to the goods in question;

(iii) the District Forum shall remit the amount so deposited to its
credit to the appropriate laboratory to enable it to carry out the
analysis or test mentioned above and on receipt of the report from
the appropriate laboratory, the District Forum shall forward a copy
of the report along with such remarks as the District Forum may
feel appropriate to the opposite party;

(iv) If any of the parties disputes the correctness of the findings of

the appropriate laboratory, or disputes the correctness of the
methods of analysis or test adopted by the appropriate laboratory,
the District Forum shall require the opposite party or the
complainant to submit in writing his objections in regard to the
report made by the appropriate laboratory;

(v) the District Forum shall thereafter give a reasonable

opportunity to the complainant as well as the opposite party of
being heard as to the correctness or otherwise of the report made
by the appropriate laboratory and also as to the objection made in
 relation thereto and issue an appropriate order under section 14.

Where the complaints admitted by the District Forum under

section 12 relates to goods in respect of which the procedure
specified in sub-section (1) cannot be followed, or if the complaint
relates to any services,—

(a) refer a copy of such complaint to the opposite party

directing him to give his version of the case within a period
of thirty days or such extended period not exceeding
fifteen days as may be granted by the District Forum;

(b) where the opposite party, on receipt of a copy of the

complaint, referred to him denies or disputes the
allegations contained in the complaint, or omits or fails to
take any action to represent his case within the time given
by the District Forum, the District Forum shall proceed to
settle the consumer dispute—

(i) on the basis of evidence brought to its notice by

the complainant and the opposite party, where the
opposite party denies or disputes the allegations
contained in the complaint, or

(ii) ex-parte on the basis of evidence brought to its

notice by the complainant where the opposite party
omits or fails to take any action to represent his
case within the time given by the Forum;

(c) where the complainant fails to appear on the date of

hearing before the District Forum, the District Forum may
either dismiss the complaint for default or decided it on
merits.

Section 13(3) provides that no proceedings complying with the procedure laid
down therein shall be called in question in any court on the ground that the
principles of natural justice have not been complied with.

Section 13(3A) provides that every complaint shall be heard as expeditiously as

possible and endeavour shall be made to decide the complaint within a period of
three months from the date of receipt of notice by opposite party where the
complaint does not require analysis or testing of commodities and within five
months, if it requires analysis or testing of commodites. However, no
adjournment shall be ordinarily granted by the District Forum unless sufficient
cause is shown and the reasons for grant of adjournment have been recorded in
 writing by the Forum.

Further the District Forum shall make such orders as to the costs occasioned by
the adjournment as may be provided in the regulations made under this Act.
Also in the event of a complaint being disposed of after the period so specified,
the District Forum shall record in writing, the reasons for the same at the time of
disposing of the said complaint.

Interim relief.—Consumer forums have no power to grant any interim relief or

even an adinterim relief. They can grant only a final relief. They also do not have
the power to review their own orders.1

Findings of the District Forum and Relief (Section 14)

If, after conducting the proceedings under section 13, the District Forum is
convinced that the goods were really defective or that the complaint about the
service is proved, it shall order the opposite party to do one or more of the
followings things:

(a) to remove the defects which have been pointed out by the laboratory.

(b) to replace the goods with new goods of similar description which shall
be free from any defect;2

(c) to return to the complainant the price of the goods or charges for the
services;3

(d) to pay to the consumer a sum of money by way of compensation for

any loss or injury suffered by the consumer due to the negligence of the
opposite party.4The District Forum shall have the power to grant punitive
damages in such circumstances as it deems fit;

______________

1. Rajasthan State Industrial Development Corp. v. Premier Paints, (1991) I CPR 614 NC.

2. In Kailash Kumari v. N. Electronics, (1991) II CPJ 27 N.C., a defective Television was ordered to be

replaced alongwith compensation. The National Commission also said the forum is competent to measure

the amount of compensation even if the party has supplied no particulars; see also Issac Mathew v. Maruti

Udyog Ltd., (1991) 11 CPJ 75 Ker; Dynavision Ltd. v. Sudhakar Karanth, (1991) II CPJ 398 Ker, where

Korean Picture Tube was replaced by Philips Picture Tube and also compensation of Rs. 2000 was allowed.

3. See Bhamy v. Shenoy, 1991 CPJ 133 Kan, where a passenger Could not be conveyed to his destination

owing to road obstruction was allowed to recover from the bus operator his ticket money to and fro; In

Bharat Tractors v. R.C. Pandey, (1991) I CPJ 152 NC excess price charged for a tractor was ordered to be
refunded.

4. See M.L. Sharma v. Chief Administrator, HUDA, (1991), where, for allotment of plots on behalf of

Haryana Urban Development Authority, the application was not sent by the bank to the authority with the

result that the complainant missed the allotment. The Forum held that an application received by an

authorised agent was as good as that received by the organisation, and the application being valid, the

complainant was entitled to an allotment. In an other case of Chetun Kumari v. D.D.A., 1991 (II) CPJ 606

Delhi, the D.D.A. posted a letter of allotment in

(e) to remove the defects is goods or deficiencies in the services in

question;

(f) to discontinue the unfair trade practice or the restrictive trade practice
or not to repeat them;

(g) not to offer the hazardous goods for sale;

(h) to withdraw the hazardous goods from being offered for sale;

(i) to cease manufacture of hazardous goods and to desist from offering

services which are hazardous in nature;

(j) to pay such sum as may be determined by it, if it is of the opinion that
loss or injury has been suffered by a large number of consumers who are
not identifiable conveniently;

(k) to issue corrective advertisement to neutralize the effect of

misleading advertisement at the cost of the opposite party responsible for
issuing such misleading advertisement;

(l) to provide for adequate costs to parties.

The Amendment Acts of 1993 and 2002 added some of the abovenoted clauses,
in order to confer greater powers on the consumer forum in respect of its
findings. But it must be noted that the authorities under the Act have to confine
themselves to the above reliefs. No other relief can be allowed. Thus, in Dealwell
Engg. Works v. V.V. Choudhary,1 where materials contracted to be supplied was
in fact not supplied constituted a breach of contract by nonperformance. It was
held to be a breach of contract and not a consumer dispute. Section 14 comes
into play only when the goods actually supplied are defective etc. and not when
there is no supply because in that case there is no question of a defective
supply. In another case of Rajasthan State Industrial Corp. v. Premier Paints, 2 a
contractor failed to erect and commission the equipment in terms of his
contract. It was held by the National Commission that a breach of contract of
this kind was not remediable under the Act. It was not a case of deficiency in
 service. The matter should go under the law of contract to Civil Court. Similarly
in N.K. Goyle v. Registrar, IIT,3 where an educational institution, I.I.T., failed to
bring about a promised improvement in the strength and design of helmets, has
been held not to be a commercial service and hence outside the purview of the
Act. In an important case of Jewellers Narandas & Sons v. Oriental Ins. Co.
Ltd.,4 the facts were that a consignment of gold was lost due to invasion of the
country to which it was sent. The insurance company was not held liable a
wrong name resulting in delay in delivery. It was not allowed to cancel the
allotment for late payment. Similarly, in C.L. Jaganath v. B.D.A., 1991 (II) CPJ
88 Karn, the B.D.A. was required to reimburse the complainant for loss of
registration expenses when the plot allotted and registered to him turned out to
be under litigation. He was provided a new plot. See also, Saralamma v. B.D.A.,
1991 (II) CPJ 390 Karn. In Consumer Unity & T. Society v. Union of India, 1991
CPR 21 New Delhi, it was held that adulteration is a defect in goods entitling
sufferers to a continuous relief till complete recovery.

_________________

1. (1995) 84 Comp Cas 724 AP.

2. (1991) 2 CPJ 599 NC.

3. (1991) 2 CPJ 614 Bom.

4. 1995 Supp 4 SCC 117.

because there was no deficiency on its part. It was held by the Supreme Court
that the National Commission was right in holding that the insured had a remedy
to approach the Civil Court.

Conduct of proceedings & Quorum.—The Consumer Protection Act provides that

every proceeding referred to in section 14(1) shall be conducted by the
President of the District Forum and at least one member thereof sitting together.
However, if the member, for any reason, is unable to conduct the proceedings
till it is completed, the President and the other member shall conduct such
proceedings by continuing it from the stage at which it was last heard by the
previous member.1 Every order made by the District Forum shall be signed by
the President and the member or members who conducted the proceeding. But
where the proceeding is conducted by the President and one member and they
differ on any point or points, they shall state the point or points on which they
differ and refer the same to the other member for hearing on such point or
points and the opinion of the majority shall be the order of the District Forum.2 It
may also be noted that the procedure relating to the conduct of the meetings of
the District Forum, its sittings and other matters shall be such as may be
 prescribed by the State Government.3

The Quorum.—It is evident from the provisions contained in section 14(2) and
14(2)(A) that the proceedings are to be conducted by the President of the
District Forum and at least one member thereof sitting together. Thus, the
President and at least one sitting member of the District Forum constitute the
Quorum.4

It means neither the President sitting alone nor the two members sitting
together in the absence of President, can conduct the proceedings for want of
quorum. Hence any order passed by the President alone or by the two members
in the absence of the President, shall be invalid. In Gulzari Lal Agarwal v.
Accounts Officer,5 the Supreme Court quashed the order of the National
Commission holding the order passed by only two Members of the State
Commission as void in view of the absence of the President of the State
Commission.

The Central Government6 took note of the above decision of the Supreme Court
and amended the Consumer Protection Rules in 1987 (which came into force on
27th Jan., 1907) to provide for the functioning of the National Commission even
if its President is nonfunctional owing to absence, illness or

___________________

1. Section 14(2), Consumer Protection Act, 1986.

2. Section 14(2A), Consumer Protection Act, 1986.

3. Section 14(3), Consumer Protection Act, 1986.

4. If there is no quorum, it may be adjourned by the Reader of the court or a member or President sitting

singly. See, Sawhney Export House v. Air France, (1986) I CPJ Del.

5. 1996 (II) CPJ (SC). In the instant case, the West Bengal Consumer Protection Rules, 1987 shall govern

the proceedings. According to Rule 6, subrule (9) where any vacancy occurs in the office of the President of

the State Commission, the senior-most (in order of appointment) Member holding office for the time being,

shall discharge the function of the President until a person is appointed to fill such vacancy. This rule is

made to make the State Commission functional even when the President is nonfunctional. See also, Mohd.

Abdullah v. Abid Quadir, (1997) I CPJ 181 (UP SCDRC).

6. In the case of State Commission or District Forum, the State Government has got the power to amend

the rules.

otherwise. In such a situation it has now been provided by the Consumer

Protection (Amendment) Rules, 1997 that:
 (a) the senior-most member of the National Commission with judicial
background, if authorised so to do by the President in writing, shall
discharge the functions of the President until the day on which the
President resumes the charge of his functions;

(b) in the above circumstances, the proceeding of the National

commission shall be conducted by the Senior most member and at least
two members thereof sitting together;

(c) Every order shall be signed by the Seniormost member (in the
absence of President) and two members who conducted the proceedings.
If there is any difference of opinion among themselves the opinion of the
majority shall be the order of the National Commission.

Appeals (Section 15)

Any person aggrieved by an order made by the District Forum may prefer an
appeal against such order to the State Commission within a period of thirty days
from the date of the order, in such form and manner as may be prescribed.1 The
State Commission may, however, entertain an appeal after the expiry of the said
period of thirty days if it is satisfied that there was sufficient cause for not filing
it within that period. Further that no appeal by a person, who is required to pay
any amount it terms of an order of the District Forum, shall be entertained by
the State Commission unless the appellant has deposites in the prescribed
manner fifty per cent. of that amount or twenty-five thousands rupees,
whichever is less. A case worth mentioning on this point is of Delhi Development
Authority v. I.S. Narula,2 where certified copy of the order was received by the
appellant on 13-7-1994. The appeal was filed on 27-9-1994. The delay was
stated to be due to public holidays on 14th and 15th August, 1994, strike in Tis
Hazari Courts and procedural delay in obtaining sanction of D.D.A. for filing the
appeal. The Supreme Court while condoning the delay for sufficient cause,
observed that the power of condonation should be exercised liberally.3

Ex parte Order.—If the opposite party fails to appear on the date of hearing, the
District Forum may proceed and pass an ex parte order. The District Forum can
set aside the ex parte order if sufficient cause is shown for not appearing in the
case. In Maya Mitra v. K.P. Equipments,4 it has been held that the District
Forum, which has the right to pass an ex parte order has also the power to set
aside the same provided sufficient cause is shown and the prayer is made early,
without any undue delay.

But in Janak Mehta v. Allabahad Bank,5 the State Commission of J&K held that
one of the methods adopted to prolong the proceedings was, firstly, to allow the
___________________

1. Limitation period of 30 days begins from the date of communication of the order.

2. 1995 (III) CPJ 333; See also, Vice Chairman, D.D.A. v. O.P. Gupta, 1995 (III) CPJ 18 (NC); Exec.

Engineer, Elec. Board v. Santosh Kumar, I (1996) CPJ 332 (MP SCDRC).

3. See also Collector of Land Acquisition v. Katiji, MANU/SC/0161/1988 : AIR 1988 SC 897.

4. (1996) I CPJ 330 (WB SCDRC); See also, Gupta Enterprises v. Shakuntala Gupta, II (1991) CPJ 493.

5. (1996) I CPJ 149 (J&K SCDRC).

case to proceed ex parte, and then waste further time in getting the ex parte
order set aside, in enquiries and in recording evidences. It was said that the Civil
Procedure Code applicable to Consumer Protection Act applies to a limited
extent. Therefore, the District Forum has no power to set aside an ex parte
order.

The above decision in Janak Mehta's case, it appears, has not been correctly
decided. The correct position is that an ex parte order may not be set aside if
the opposite party is trying to unnecessarily waste the time, but it can be set
aside if the opposite party has genuine reasons for not appearing in the case.

Dismissal of complaint in default.—In Kamlesh Bansal v. Balaji Land

Traders,1 the complainant failed to appear on the date fixed by the District
Forum for ex parte evidence. Within 23 days of dismissal of complaint, the
complainant applied for restoration. It was rejected on the ground that the
District Forum could not restore the complaint. The Delhi State Commission held
that the Commission, while exercising appellate jurisdiction, can set aside the
order of the District Forum dismissing the said application for restoring the
complaint.

Appeal against interlocutory order.—No appeal lies against an interlocutory order

passed by a District Forum. However, in the case of Jaipur Stock Exchange Ltd.
v. C.P. Mehta2, it has been held that the State Commission under section 17(b)
of the Act has jurisdiction to call for the records and pass appropriate orders in
any consumer dispute which is pending before or has been decided by a District
Forum within the State, where it appears that such District Forum has exercised
a jurisdiction not vested in it by law, or has acted in exercise of its jurisdiction
illegally or with material irregularity. As such an appeal, which has been filed
inadvertently against an interlocutory order, can be treated as a revision.

5.2. State Commission
 Composition (Section 16) 

The State Commission shall consist of the following members:

(a) A person who is or has been a Judge of a High Court. His appointment
is made by the State Government after consultation with the Chief Justice
of the High Court. He will be the President of the Commission.

(b) Two other members, who shall be persons of ability, integrity and
standing and have adequate knowledge or experience of or have shown
capacity in dealing with problems relating to economics, law, commerce,
accountancy, industry, public affairs or administration, one of whom shall
be a woman. The appointment of these members shall be made by the
State Government on the recommendation of the Selection Committee
consisting of the following:

(i) President of the State Commission. Chairman

(ii) Secretary of the Law Department of State. Member

(iii) Secretary in-charge of Department dealing Member with

Consumer Affairs in the State.

_______________

1. 1995 (III) CPJ 510 (Del SCDRC).

2. (1991) 2 CPJ 51 Raj.

Salary & Terms of the Office.—The salary or honorarium and other allowances
payable to, and the other terms and conditions of service of the members of the
State Commission shall be such as may be prescribed by the State
Government.1

Every member of the State Commission shall hold office for a term of five years
or up to the age of sixty seven years, whichever is earlier and shall be eligible
for reappointment.2

Jurisdiction (Section 17)

The State Commission shall have jurisdiction in the following matters:

(a)    (i) To entertain complaints where the value of the goods or services
and compensation, if any, claimed exceeds rupees twenty lakhs but does
not exceed rupees one crore3; and

(ii) to entertain appeals against the orders of any District Forum

 within the State.

(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. Such power can be exercised only where it
appears to the State Commission that the District Forum has exercised a
jurisdiction which is 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.4

Procedure (Section 18) 

The provisions of sections 12, 13 and 14 and the rules made thereunder for the
disposal of complaints by the District Forum shall, with such modifications as
may be necessary, be applicable to the disposal of disputes by the State
Commission.

Appeals (Section 19) 

Any person aggrieved by an order made by the State Commission in exercise of

its powers conferred by section 17(a) above, may prefer an appeal against such
order to the National Commission within a period of thirty days from the date of
the order5 in such form and manner as may be prescribed.

Hearing of appeal (Section 19A)6 An appeal filed before the State Commission or
the National Commission shall be heard as expeditiously as possible and an
endeavour shall be made to

_________________

1. Section 16(2), Consumer Protection Act, 1986.

2. Section 16(3), Consumer Protection Act, 1986.

3. In Akhil Bharatiya Grahak Panchayat v. L.I.C., (1991) I CPJ 171 Mah, it was held that the basis of

jurisdiction is not the amount awarded but the amount claimed. It may also be noted that there is no power

of reviewing earlier orders. See Usha Rani Gupta v. G.M., (1991) 2 CPJ 87; See also Girja Prasad Tikkiwal

v. Rana Deo Saini, 1991 (II) CPJ 335 (Raj).

4. Even where the appeal is not maintainable, the State Commission can still treat and decide the same as

revision in exercise of its power under section 17(b) of the Act, See, C.R. Kataria, T.D.M. v. Consumer

Disputes Redressal Distt. Forum, 1991 (II) CPJ 682.

5. It has been interpreted to mean thirty days from the date of delivery of the order to the party. See,
Housing Board v. Housing Board Colony Welfare Assn., MANU/SC/0014/1996 : (1995) 5 SCC 672.
 6. Ins. by Act 62 of 2002, sec. 17 (w.e.f. 15-3-2003).

finally dispose of the appeal within a period of ninety days from the date of its
admission:

Provided that no adjournment shall be ordinarily granted by the State

Commission or the National Commission, as the case may be, unless
sufficient cause is shown and the reasons for grant of adjournment have
been recorded in writing by such Commission:

Provided further that the State Commission or the National Commission,

as the case may be, shall make such orders as to the costs occasioned by
the adjournment as may be provided in the regulations made under this
Act:

Provided also that in the event of an appeal being disposed of after the
period so specified, the State Commission or the National Commission, as
the case may be, shall record in writing the reasons for the same at the
time of disposing of the said appeal.

5.3. National Commission

Composition of National Commission (Section 20) The National Commission shall

consist of the following persons:

(a) A person who is or has been a judge of the Supreme Court. He shall
be appointed by the Central Government after consultation with the Chief
Justice of India.1He shall be its President.

(b) not less than four, and not more than such number of members, as
may be prescribed, and one of whom shall be a woman, who shall have
the following qualifications, namely:—

(i) be not less than thirty-five years of age;

(ii) possess a bachelor's degree from a recognized university; and

(iii) be person of ability, integrity and standing and have adequate

knowledge and experience of at least ten years in dealing with
problems relating to economics, law, commerce, accountancy,
industry, public affairs or administration:

Provided that not more than fifty per cent. of the members
shall be from amongst the persons having a judicial
background
 Explanation.—For the purposes of this clause, the
expression "persons having judicial background"
shall mean persons having knowledge and
experience for at least a period of ten years as a
presiding officer at the district level court or any
tribunal at equivalent level:

Provided further that a person shall be disqualified for

appointment, if he—

(a) has been convicted and sentenced to

imprisonment for an offence which, in the opinion of
the Central Government, involves moral turpitude;
or

(b) is an undischarged insolvent; or

(c) is of unsound mind and stands so declared by a

competent court; or filled by appointment of a
person possessing any of the qualifications
mentioned in sub-section (1) in relation to the
category of the member who is required to be
appointed under the provisions of sub-section (1A)
in place of the person who has resigned.

________________

1. Ins. by Amendment Act 50 of 1993 (w.e.f. 18-6-1993).

Jurisdiction of National Commission (Section 21) 

The jurisdiction of the National Commission is as under:

(1) The original jurisdiction of the National commission is to entertain

complaints where the value of the goods or services and compensation, if
any, claimedt exceeds rupees one crore.

(2) The appellate jurisdiction is to entertain appeals against the orders of

any State Commission.

(3) The supervisory jurisdiction of the National Commission is 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 the State Commission has
exercised jurisdiction not vested in it or has failed to exercise a
jurisdiction so vested, or has acted in the exercise of its jurisdiction
 illegally or with material irregularity.1

Powers and Procedure of National Commission (Section 22) 

The powers and procedure of the National Commission shall be the same as
applicable to a District Forum under Sections 13 and 14 of the Act. This means
that the working procedure of the National Commission is the same as that of
the District Forum under section 13(4), (5) and (6). It has also the power to
issue an order to the opposite party directing him to do any one or more of the
things referred to in clauses (a) to (i) of sub-section (1) of section 14.

22A. Power to set aside ex-parte orders.—Where an order is passed by the

National Commission ex-parte against the opposite party or a complainant, as
the case may be, the aggrieved party may apply to the Commission to set aside
the said order in the interest of justice.

22B. Transfer of cases.—On the application of the complainant or of its own

motion, the National Commission may, at any stage of the proceeding, in the
interest of justice, transfer any complaint pending before the District Forum of
one State to a District Forum of another State or before one State Commission
to another State Commission.

22C. Circuit Benches.—The National Commission shall ordinarily function at New

Delhi and perform its functions at such other place as the Central Government
may, in consultation with the National Commission, notify in the Official Gazette,
from time-to-time.

________________

1. The National Commission pointed out that its revisional jurisdiction is limited to dispute where there has

been wrongful, illegal and improper exercise of jurisdiction or failure to exercise jurisdiction (Tele. Distt.

Manager v. Kalyanpur Cement Ltd., 1991 (II) CPJ 286 NC; see also Union of India v. Nitesh Agarwal, 1991

CPR 23 Jaipur; J.J. Fashions v. National Ins. Co., 1991 CPR 442 NC.

The Central Government has notified that the National Commission shall perform
its functions at the following places other than New Delhi:—

1. Ahmedabad

2. Allahabad

3. Bangalore

4. Bhopal

5. Chennai
 6. Hyderabad

7. Jodhpur

8. Kolkata

9. Lucknow

10. Nagpur

11. Pune

Vide S.O. 974(E), dated 31st August, 2004, published in the Gaztte of
India, Extra, Pt. II, Sec. 3(ii), dated 31st August, 2004.

22D. Vacancy in the office of the President.—When the office of President of a

District Forum, State Commission, or of the National Commission, as the case
may be, is vacant or a person occupying such office is, by reason of absence or
otherwise, unable to perform the duties of his office, these shall be performed by
the senior-most member of the District Forum, the State Commission or of the
National Commission, as the case may be:

Provided that where a retired Judge of a High Court is a member of the

National Commission, such member or where the number of such
members is more than one, the senior-most person amongst such
members, shall preside over the National Commission in the absence of
President of that Commission.

Appeal (Section 23)

An appeal lies to the Supreme Court against the order of the National
Commission. The appeal should be made to the Supreme Court within 30 days
from the date of the order of the National Commission. However, the Supreme
Court may allow an appeal even after the expiry of the prescribed period of 30
days if it is satisfied that there was sufficient cause for not filing the appeal
within the aforesaid time limit.

Finality of Order (Section 24)

Every order of a District Forum, the State Commission or the National

Commission shall be final if no appeal has been preferred against such order.

Limitation Period (24A)

Section 24A has been added by the Amendment Act, 1993. It prescribes the
period of limitation for filing the complaint as under:
 (1) The District Forum, the State Commission or the National Commission
shall not admit a complaint unless it is filed within two years from the
date on which the cause of action has arisen.

(2) A complaint may, however, be entertained even after the expiry of

two years if the complainant satisfies that he had sufficient cause for not
filing the complaint within such period. In such a case the reasons for
condoning the delay should be recorded.

Prior to the Amendment Act, 1993, the limitation period for filing the complaint
was in accordance with the provisions of Limitation Act.1

Administrative Control by National Commission (Section 24B)

The National Commission shall have administrative control over all the State
Commissions in matters relating to records of institution of cases and their
disposal, uniformity of procedure, and overseeing their functioning. Similarly,
State Commission shall have administrative control over all the District Forums
within its jurisdiction in the aforesaid matters.

Enforcement of Orders (Section 25)

The amended provisions as to enforcement of orders of the District Forum, the

State Commission or the National Commission are as mentioned below.

(1) Where an interim order made under the Act is not complied with, the Forum
or Commission, as the case may be, may order for attachment of the property of
the person not complying.

(2) No attachment made in view of the provision noted above shall remain in
force for more than three months, at the end of which, if the non-compliance
continues, the property attached may be sold and out of the proceeds, damages
may be paid to the complainant.

(3) Where any amount is due from any person under an order of the Forum or a
Commission, the person entitled to the amount may make an application and
the Forum or the Commission, as the case may be, may issue a certificate for
the said amount to the Collector of the district and the Collector shall proceed to
recover the amount in the same manner as arrears of land revenue.

In Raheemunissa v. District Consumer Forum, Ongole,2 it was contended by the

petitioner that the District Forum has no jurisdiction to entertain the execution
petition for cancellation of the sale deed in favour of the writ petitioner. The
court held that section 25(3) shows that the collector has to proceed to recover
the amount on the basis of a certificate issued by the District Forum on an
 application made by the person entitled to the said amount. Thus, an application
for enforcement of a final order has to made before the District Forum and
thereupon it is for the District Forum to make the necessary enquiry and issue
the certificate as contemplated under section 25(3) of the Act where any amount
found to be due from any person under an order made by it. Hence, there is
absolutely no reason to held that an execution petition cannot be maintained
before the District Forum.

_________________

1. See S. Kumar v. Managing Director, Air India, 1991 (II) CPJ 72, where it was held that the Limitation Act

was applicable in the case and the complainant was barred by limitation; See also, Sterocraft v. Monotype

India Ltd., (1991) I CPJ III; K.S. Hegde v. Chief Manager, PNB, 1996 (II) CPJ (Karn SCDRC).

2. MANU/AP/0857/2008 : AIR 2009 AP 100.

Dismissal of frivolous or vexatious complaints (Section 26)

Where a complaint instituted before the District Forum, the State Commission
or, as the case may be, the National Commission, is found to be frivolous, it
shall dismiss the complaint and make an order that the complainant shall pay to
the opposite party such cost, not exceeding ten thousand rupees, as may be
specified in the order.

Penalties (Section 27)

Where a trader or a person against whom a complaint is made or the

complainant fails or omits to comply with any order made by the District Forum,
the State Commission or the National Commission, as the case may be, such
trader or person or complainant shall be punishable as under:

(a) with fine not less than Rs. 2000 and not more than Rs. 10,000; or

(b) with imprisonment for a minimum period of one month and maximum
period of 3 years; or

(c) with both i.e., imprisonment and fine as mentioned above.

5.4. Miscellaneous Provisions

Protection of action taken in good faith (Sec. 28)

The members of District Forums, State Commissions and National Commission

and officers acting under their directions are protected against any suit,
prosecution or other legal proceedings for any order made in good faith.
Power to remove difficulties (Section 29)

Section 29 gives power to the Central Government to remove difficulties in the

implementation of the provisions of the Act. This power could be exercised
within a period of two years from the date of the commencement of the Act.
That period having already expired, the power has ceased to be effective. It
may, however, be noted that every order made by the Central Government
under this section shall, as soon as possible, be laid before each House of
Parliament.\

If any difficulty arises in giving effect to the provisions of the Consumer

Protection (Amendment) Act, 2002, the Central Government may, by order, do
anything not inconsistent with such provisions for the purpose of removing the
difficulty. However, no such order shall be made after the expiry of a period of
two years from the commencement of the Consumer Protection (Amendment)
Act, 2002.

Every order made under sub-section (3) shall be laid before each House of
Parliament.

Vacancies or defects in appointment not to invalidate orders (Section 29A)

Section 29A provides that no act or proceeding of the District Forum, the State
Commission or the National Commission shall be invalid by reason of the
existence of any vacancy amongst its members or any defect in their
constitution.

Powers to make rules (Sections 30, 30A and 31)

Section 30 empowers the Central and State Governments to make rules in their
respective spheres of power. Section 30A provides that the National Commission
may, with the previous approval of the Central Government, make regulations
not inconsistent with the Act to provide for all matters for which provision is
necessary or expedient for the purpose of giving effect to the provisions of the
Act. Section 31 requires that every rule made by the Central Government under
this Act, shall be laid, as soon as possible, before each House of Parliament who
may approve, modify or annul the rule. Similarly, every rule made by the State
Governments under this Act shall be laid, as soon as possible, before the State
Legislature.

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CHAPTER 28

THE MOTOR VEHICLES ACT

LIABILITY WITHOUT FAULT IN CERTAIN CASES

It is important to mention here that Chapter X1 of the Motor Vehicles Act,
19882 recognises liability without fault in certain cases.3 Section 140 provides that in the
case of death of victim, a fixed sum of Rs. 50,000 (Rs. Fifty Thousand) 4, and in the case
of his permanent disability a fixed stun of Rs. 25,000 (Rs. Twenty Five Thousand) can
be claimed as compensation5 even if the owner or the driver of the vehicle is not at
fault.6 It follows that the defence of contributory negligence or

_________________________

1. Section 144 of Chapter X also has overriding effect that the provisions of the chapter shall have effect

notwithstanding anything contained in any other provisions of this Act or of any other law for the time

being in force.

2. Insurance of Motor Vehicles against third party risks has been made compulsory under section 146 of the

Motor Vehicles Act, 1988. Contravention of this provision is now punishable under section 177 of the Act.

Motor Vehicles owned by the Central or State Government and used for governmental purposes

unconnected with any commercial enterprise or those which are expressly exempted by the respective

governments are exempted from compulsory insurance i.e., third party risks under section 146(2) and

146(3) of the Act.

3. Section 140(1) provides that where death or permanent disablement of any person has resulted from an

accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as

the case may be, the owners of the vehicles shall, jointly, and severally, be liable to pay compensation in

respect of such death or disablement in accordance with the provisions of this section. The word `use' in

the expression "accident arising out of the use of a motor vehicle" under this section cannot be given a

restrictive meaning. Thus, it will cover the case where workmen engaged in loading a motor vehicle were

electrocuted due to high tension wire drawn above that place……Babu v.

Remensen, MANU/KE/0016/1996 : AIR 1996 Ker 95.

4. Permanent disablement has been defined under section 142 of the Act. It provides that permanent

disablement of a person shall be deemed to have resulted from an accident of the nature referred to in

subsection (1) of section 140 if such person has suffered by reason of the accident any injury or injuries

involving—(a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any

member or joint, or (b) destruction or permanent impairing of the power of any member or joint; or (c) or

permanent disfigurement of the head or face.

5. Section 140(2) provides that the compensation which shall be payable under section (1) in respect of

death of any person shall be a fixed sum of Fifty Thousand rupees and the amount of compensation payable

under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of
 Twenty Five Thousand rupees.

6. Section 140(3) provides that the claimant shall not be required to plead and establish that the death or

permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect

or default of the owner of the vehicle or of any other person.

any other defence is also not allowed when the fixed sum of amount is claimed under
this section.1

This section therefore attaches strict liability of the owner or on their behalf of the
insurance company. However, if the claim exceeds the aforesaid fixed sum of amount,
then the plaintiff has to establish fault on the part of the owner of the vehicle under
section 140 of the Act.2 The excess of amount claimed under section 141 shall be in
addition to the fixed sum amount paid under section 140 after making
adjustments.3 Apart from that, payment of solatium in cases of hit and run accidents
has been established by the Central Government in those cases where the person died
or was grievously hurt4 and the identity of the vehicle involved cannot be ascertained in
spite of reasonable efforts.5 The payment of compensation payable out of such solatium
fund will be Rs. 25,000 in case of death and Rs. 12,500 in case of grievous hurt.6

It may also be added that the provisions of Chapter X of the Motor Vehicle Act shall also
apply in relation to any claim for compensation in respect of death

______________________

1. Section 140(4) provides that a claim for compensation under section 140(1) shall not be defeated by

reason of any wrongful act, neglect or default of the person in respect of whose death or permanent

disablement the claim has been made nor shall the quantum of compensation recoverable in respect of

such death or permanent disablement be reduced on the basis of the share of such person in the

responsibility for such death or permanent disablement.

2. Section 141(1) provides that the right to claim compensation under section 140 in respect of death or

permanent disablement of any person shall be in addition to any other right (hereinafter in this section

referred to as the right on the principle of fault) to claim compensation in respect thereof under any other

provision of this Act or any other law for the time being in force.

3. Section 141(3) provides that notwithstanding anything contained in subsection (1), where in respect of

the death or permanent disablement of any person, the person liable to pay compensation under section

140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so

liable shall pay the firstmentioned compensation and... (a) if the amount of the firstmentioned

compensation is less than the amount of the second mentioned compensation as is equal to the amount by

which it exceeds the first-mentioned compensation; (b) if the amount of the secondmentioned

compensation is equal to or more than the amount of the secondmentioned compensation, he shall not be

liable to pay the secondmentioned compensation.

 4. Section 161(1)(a) provides that "grievous hurt" shall have the same meaning as in the Indian Penal

Code, 1860, and (b) "hit and run motor accidents" means an accident arising out of the use of a motor

vehicle or motor vehicles the identity whereof cannot be ascertained in spite of reasonable efforts for the

purpose.

5. Section 161(2) provides that notwithstanding anything contained in the general insurance business

(Nationalisation) Act, 1972 or any other law for the time being in force or any instrument having the force

of law, the General Insurance Corporation of India formed under section 9 of the said Act and the insurance

companies for the time being carrying on general insurance in India shall provide for paying in accordance

with the provisions of this Act and the scheme (made by the Central Government under section 163),

compensation in respect of death of, or grievous hurt to, persons resulting from hit and run motor

accidents.

6. Section 161(3) provides that subject to the provisions of this Act and the scheme, there shall be paid as

compensation (a) in respect of death of any person resulting from a hit and run accident, a fixed sum of Rs.

25,000 and (b) in respect of grievous hurt to any person resulting from a hit and run motor accident, a

fixed sum of Rs. 12,500.

or permanent disablement of any person under the Employee's Compensation Act, 1923
(formerly Workmen's Compensation Act, 1923) resulting from an accident of the nature
referred to in subsection (1) of section 140 and for this purpose, the said provisions
shall, with necessary modifications be deemed to form part of that Act. 1 Similarly
compensation for death is also payable by a carrier of air under the Carriage by Air Act,
1934.

In case of death of cleaner of truck by electrocution, the assessment of compensation

should be reasonable and proper. The court held that, the compensation which would
have been in this instant case,2 payable to petitioners under section 163(A)3 of Motor
Vehicles Act, 1988 would require suitable increase to compensate them for deprivation
of their fundamental right to life too. Keeping in view of dependency on earning of
deceased, the State should be liable to pay ` 3.40 lakhs to petitioners as compensation.

____________________

1. Section 140(3) provides that the claimant shall not be required to plead and establish that the death or

permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect

or default of the owner of the vehicle or of any other person.

2. S. Prem Singh v. State of Jammu and Kashmir, AIR 2011 J&K 50.

3. Section 163A provides the special provisions as to payment of compensation on structured formula basis.

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