Law Of Torts 2018-1

AL-AMEEN COLLEGE OF LAW MODEL ANSWER - DECEMBER -2018 FIRST SEMESTER, 3 YEARS LL.B. LAW OF TORTS AND CONSUMER LAW Duration: 2 ½ hours

Max Marks: 80

Instructions: - 1. Answer all Units 2. Part (a) Carries 10 marks and Part (b) carries (5) marks

Q.NO.1.(a) Define tort and explain the essential elements of tort. ANSWER Introduction NATURE AND ORIGIN The origin of the word “tort” may be traced to the Latin word “tortum” which means “twisting out.” It includes that conduct which is not straight or lawful. This branch of law consists of various “torts” or wrongful acts whereby the wrongdoer violates some legal right vested in another person. In law it means a wrong or injury having certain characteristics, the most important of which is that it is redressible in an action for unliquidated damages at the instance of the person who has been injured or wronged. Law imposes a duty to respect the legal rights vested in the members of the society and the person making breach of that duty is said to have done the wrongful act. Definition:SALMOND:It is a civil wrong for which the remedy is a common law action for liquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. 1. Wrongs exclusively criminal; 2. Civil wrong which create no right of action for unliquidated damages, but give rise to some other form of civil remedy exclusively;

3. Civil wrong which are exclusively breaches of contract; 4. Civil wrong which are exclusively breaches of trust or of some other remely equitable obligation. WINFIELD:Tortious liability arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. 1. 2. 3. 4.

Breach of duty Primarily fixed by law Duty towards people generally Breach of duty is redressible by an action for liquidated damages.

FRASER:It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party. SECTION 2(M) OF LIMITATION ACT 1963:Tort means a civil wrong which is not exclusively a breach of contract or breach of trust. “The Law of Torts is concerned with the redress of wrongs or injuries (other than breach of contract) by means of a civil action brought by the victim. The redress most commonly takes the form of damages that is to say, monetary compensation. The basic idea which is indicated by these definitions is- Firstly tort is a civil wrong, and secondly every civil wrong is not a tort. There are other civil wrongs also the important of which are a breach of contract and breach of trust. To constitute a tort the following essential elements must be present:1. A wrongful act committed by the defendant. 2. The wrongful act must result in legal damage to another person; and 3. The wrongful act must be of such a nature as may give rise to a legal remedy in the form of an action for damages. 1. WRONG FUL ACT:The first essential element of a tort is that the defendant must be guilty of having committed a wrongful Act. A wrongful act is an act which is contrary to law. It also includes an omission to perform a legal duty.

A tort consists in some act don (or omission) by the defendant whereby he has without just cause or excuse caused some harm to the plaintiff. A legal right has been defined as a “capacity residing in one person of controlling with assent and assistance of the state the action of others”. Tortious liability arises out of a breach of duty primarily fixed by law. To every right there is a co-relative duty or obligation. Thus a wrongful act means infringement of a legal duty. 2. Legal Damage:Yet another essential element of a tort is that wrongful act committed by the defendant must result in legal damage to the plaintiff. Legal damage means neither actual or pecuniary damages. Legal damage takes place when there is a breach of legal duty or when plaintiff’s right recognized by law is infringed. Every injury imports a damage though it does not cost the party one farthing and it is impossible to prove the contrary for a damage is not merely pecuniary but an injury imports a damage, when a man is thereby hindered of his right. Where a damage is legal damage or not can be understood with the help of two maxims. 1. Injuria Sine damno 2. Damnum sine injuria 1. Injuria Sine Damno:It means that if a private right is infringed, the plaintiff will have a cause of action even though the plaintiff has not suffered any actual loss or damage. Thus according to this maxim what is necessary is the infringement of a legal right and not the proof of actual loss or damage. Injuria means infringement of a right (of plaintiff) conferred or recognized by law, and damnum means actual damage or loss.

ASHBY V. WHITE In this case the plaintiff was a legally qualified voter of the Borough of Aylesbury and the defendant was the returning officer. The defendant wrongfully maliciously and fraudulently refused to register a duly tendered vote of the plaintiff. Thus the legal right of the plaintiff to cast his vote was infringed. But he did not suffer any actual loss because the candidate for whom he tendered his vote was elected. Yet it was held that an action lay and that the defendant was liable.

BHIM SINGH V STATE OF J AND K (AIR 1986 S.C. 494)

The petitioner an M L A of J & K Assembly, was wrongfully detained by the police while he was going to attend the Assembly session. He was not produced before the Magistrate within requisite period. As a consequence of this the Member was deprived of his constitutional right to attend Assembly session. In this case the Supreme Court released him as well as exemplary damages amounting to Rs. 50,000 were awarded to him. Thus the maxim injuria sine damno means that infringement of a legal right will give rise to an action irrespective of the fact that no actual loss or damage has taken place. DAMNUM SINE INJURIA:This maxim means that no action will lie if there is actual loss or damage but there has been no infringement of legal right. GLUCESTAR GRAMMAR SCHOOL CASE Where the plaintiff suffered loss of fees because of the defendant set up a rival school next door. It was held that no action would lie because there was no infringement of any legal right of the plaintiff. Thus if there is no infringement of legal right no action will lie, lawful competition is no ground of action. In MOGUL STEAMSHIP CO. V. MC GREOGOR GOW & CO The defendant, owners of certain ship established an association with a view to secure an exclusive trade for themselves between china and Europe. They reduced freight by offering rebate to customers who would deal with them. They thus drove the plaintiff out of trade of carrying tea between China and Europe. The House of Lords held that plaintiff had no cause of action because what the defendants did was for protecting and extending their trade so as to increase their profits. BRADFROD CORPORATION .V. PICKLES In this case the plaintiff corporation wanted to purchase some land for starting a scheme of water supply for the inhabitants of the town. The defendant wanted the corporation to purchase his land.

But the corporation refused to purchase his land. This refusal annoyed pickles and in order to get himself avenged, he sank a shaft on his land with the intention of diverting underground water form a spring that supplied the plaintiff corporation’s works. Consequently the water which percolated through his land from corporation’s land on a higher level was discoloured and diminished when it passed again to the lower land of the corporation. The House of Lords held that Pickles was not liable because he was exercising his lawful right. 3. LEGAL REMEDY:A tort is a civil wrong for which the remedy is an action for unliquidated damages. There may be other remedies also such as specific restitution and injunction, but an action for unliquidated damages is the essential mark and the characteristic remedy for a tort. It is said that the development of the law of tort owes much to the maxim, ubi jus ibi remedium which means that there is no wrong without a remedy. Or Define Torts, Distinguish torts from Contractual and Criminal liability. ANSWER:NATURE AND ORIGIN The origin of the word “tort” may be traced to the Latin word “tortum” which means “twisting out.” It includes that conduct which is not straight or lawful. This branch of law consists of various “torts” or wrongful acts whereby the wrongdoer violates some legal right vested in another person. In law it means a wrong or injury having certain characteristics, the most important of which is that it is redressible in an action for unliquidated damages at the instance of the person who has been injured or wronged. Law imposes a duty to respect the legal rights vested in the members of the society and the person making breach of that duty is said to have done the wrongful act. Definition:SALMOND:It is a civil wrong for which the remedy is a common law action for liquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.

1. Wrongs exclusively criminal; 2. Civil wrong which create no right of action for unliquidated damages, but give rise to some other form of civil remedy exclusively; 3. Civil wrong which are exclusively breaches of contract; 4. Civil wrong which are exclusively breaches of trust or of some other remely equitable obligation. WINFIELD:Tortious liability arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. 1. 2. 3. 4.

Breach of duty Primarily fixed by law Duty towards people generally Breach of duty is redressible by an action for liquidated damages.

FRASER:It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party. SECTION 2(M) OF LIMITATION ACT 1963:Tort means a civil wrong which is not exclusively a breach of contract or breach of trust. “The Law of Torts is concerned with the redress of wrongs or injuries (other than breach of contract) by means of a civil action brought by the victim. The redress most commonly takes the form of damages that is to say, monetary compensation. The basic idea which is indicated by these definitions is- Firstly tort is a civil wrong, and secondly every civil wrong is not a tort. There are other civil wrongs also the important of which are a breach of contract and breach of trust. (b). Malice in fact and Malice in Law MALICE:It means evil or bad motive. It may also mean to do an act willfully done without any excuse or just cause. Bromage V. Prosser.

Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause of excuse. Malice in law :- means a willful act done without just cause or excuse. It signifies a wrongful act done intentionally without just cause or excuse. A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind, he is taken to know the law, and must act within the law. He may, therefore be guilty of malice of law. So the state of his mind is concerned he act innocently. Malice in fact :- means an evil motive. An evil motive for wrongful act. When a defendant does a wrongful act with a feeling of spite, vengeance ( revenge) or ill will, the act is said to be done maliciously. OR ‘X’ a banker refuses to honour customer’s cheque having sufficient funds in his account belonging to the customer. Customer intends to file a suit against the banker. Will he succeed? Solution:- Yes, the customer will succeed. The reasons are as follows, The above mentioned problem is related to the topic Essential elements of tort. There are 3 important essential of tort. 1. a wrongful act 2. a legal damage 3. a legal remedy for unliquidated damages. Under the 2nd essential that is Legal Damage. In Law of tort to recover damages from the defendant, plaintiff has to prove that the defendant’s wrongful act has resulted in violating of his legal right. Injuria sine Damno.

This Maxim literally means violation of a legal right without causing any harm, loss or pecuniary damage to the plaintiff. The wrongful act of the defendant may result in violation of legal right of the plaintiff. The invasion of an absolute private right of the plaintiff will be treated as injuria and the plaintiff action will succeed even if he has suffered no damnum or actual loss. In MARZETTE V. WILLIAMS. The banker wrongfully disallowed the cheque presented by a customer who sued the bank for violation of his legal right. Allowing the action, the court held that the banker refused to accept the cheque presented by the plaintiff for payment despite the fact that there was sufficient balance in his account therefore, it was a clear violation of plaintiff’s absolute right and defendant were held liable although the plaintiff had suffered no harm or loss due to the non-acceptance of cheque. In the above mentioned problem the customer will succeed because his absolute private right is violated by the banker.

Q.No.2. (a) Enumerate and examine the General Defences to an action in Tort. INTRODUCTION:When a plaintiff brings an action against the defendant for a particular tort, providing the existence of all the essentials of that tort, the defendant would be liable for the same. The defendant may, however even in such a case, avoid his liability by taking the plea of some defence. The recognized general defences are the following. 1. VOLENTI NON FIT INJURIA OR LEAVE OF LICENCE One of the recognized general defences to liability in tort is that the plaintiff consented or assented to the doing of an act which caused harm to him, the defendant would not be liable. This is known as Volenti non fit injuira, or leave or licence. This defence is founded on good sense and justice. One who has or assented to an act being done towards him cannot when he suffers from it, complain of it as a wrong. The question of application of the maxim may arise only if it is established that a tort has been committed by the defendant.

IMPERIAL CHEMICAL INDUSTRIES LTD V. SHATWELL In this case two brothers were employed in the a quarry. In total disregard to the employer’s order and also some statutory regulations, they decided to test some detonators without taking the requisite precautions. Consequently the brothers were injured in an explosion due to the negligence of one the brother named James. He brought an action against the employer on the ground that they were vicariously liable. But it was held that the maxim Volenti Non Fit Injuria applied because it was clear from the conduct of the respondent that he had consented to the risk or injury involved. WHITE V. BLACKMORE In this case the plaintiff’s husband had signed on as a competitor in an old care race organised by the defedants. For admission of spectators it was one of the conditions that in case of any accident, the defendants would not be liable. Since, plaintiff was one of the spectators, he was allowed admission free of charge but had to pay for the admission of his family After take part in the race, the plaintiff joined his family to witness another act. Then he stood just outside the spectator’s rope near the place where two safety ropes were tied. The wheel of a racing car having go entangled in a safety rope he was catapulated about 20 feet and died as a result of the injury. The plaintiff brought an action to recover damage for negligence in respect of the death of her husband. The defendant pleaded the maxim Volenti Non Fit Injuria applies and he was not liable. The court did not agree the argument because when the plaintiff signed as a competitor he did not have full knowledge of the risk which might arise from the defective layout of the ropes and that he had not willingly accepted the risk of injury which could arise from the fault of the defendants. LIMITATION OF THE MAXIM 1. CONSENT MUST BE VOLUNTARY AND FREE 2. KNOWLEDGE DOES NOT NECESSARILY IMPLY ASSENT OR CONSENT. 3. CONSENT MUST NOT GENERALLY BE TO ILLEGAL ACTS

4. THE MAXIM DOES NOT APPLY TO CASES OF NEGLIGENCE. 5. THE MAXIM DOES NOT APPLY TO RESCUE CASES 6. UNFAIR CONTRACT TERMS ACT, 1977

2. ACT OF GOD It means an act or escape caused directly by natural cause without human intervention and is so unexpected that no human foresight or skill could reasonably be executed to anticipate it. Thus an act of God is an act “ is due to natural causes directly and exclusively without human intervention and that it could not have been prevented by any amount of foresight and pains and care reasonably to have been expected from him. NICHOLS V. MARSLAND In this case the defendant was in possession of some artificial pools or lakes which were formed by damming a natural stream. A violent storm and rainfall broke down the embankments. Four bridges were carried away because of the rush of water. When the defendant was sued for the damages the court held him not liable due the act of god. RYLANDS V. FLETCHER. The true law is that the person who for this own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes must keep it 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. But he added. “He can excuse himself by showing that the escape was the consequence of vis major or the act of God”. Two important essentials are needed for this defence. 1. There must be working of natural forces; 2. The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against. 3. INEVITALBLE ACCIDENT By inevitable accident we mean accident which cannot be avoided, by any such precaution as a reasonable man, doing such act then and there, could be expected to take.

Thus an accident which could have been avoided by a reasonable man by taking precautions at the time of the accident cannot be called an inevitable accident BROWN V. KENDALL The dogs of the plaintiff and the defendant were fighting.In order to separate them the defendant was beating them with a stick. From the point of view of his own safety he retreated while striking them. The plaintiff was standing at a distance of few places at his back. While retreating thus he once raised his stick to strike at the dogs but it hit the plaintiff in the eye causing serious injury. In an action brought by the plaintiff against the defendant it was held that injury to the plaintiff was the result of pure accident which was involuntary and unavoidable and hence the defendant was not liable. HOLMES V MATHER. A pair of horses were being driven by the groom of the defendant on a public highway. On account of barking of a dog, the horses started running very fast. The groom made the best possible efforts to control them and to turn them round a sharp corner but failed. They knocked down the plaintiff who was seriously injured. It was held that the defendant was not liable 4. ACT OF STATE:An act of state is an act which is done in exercise of sovereign power against an alien. It is an exercise of power against an alien and neither intended nor purported to be legally founded. A defence of this kind does not seek to justify the action with reference to the law but questions the very jurisdiction of the courts to pronounce upon the legality or justice of the action. SECRETARY OF STATE IN COUNCIL OF INDIA V. KAMACHEE BAYA SAHEBA In this case the Raja of Tanjore an independent sovereign died without leaving an issue. Under the doctrine of lapse, East India Company declared it to have become part of British dominion. Kamachee Baye Saheba, the widow of the late Raja of Tanjore brought an action against the act of the compan

The privy council held that since it was an act of the state, Municipal court can have no jurisdiction over it for such court have neither the means of doing what is right nor the power of enforcing any decisions they make. Exceptions 1. Trespass to immovable property. 2. an obligation imposed by a statute 3. where it can be shown that the government has benefited from the tort of its servants. 5. PRIVATE DEFENCE. Law allows a reasonable private defence of one’s person and property and therefore , if injury is caused in exercise of private defence, it will negative the liability of the defendant. But private defence, to be valid the use of force must be reasonable, necessary and proportionate to the danger. Private defence is of two types. 1. Private defence of person and 2. Private defence of property. i. PRIVATE DEFENCE OF PERSON:Every one is entitled of the reasonable defence of oneself as well as of those whom he is bound to support. That is to say, right to private defence of person extends to one’s spouse and family. But the use of force in exercise of self-defence must be reasonable and proportionate. Whether the use of force in exercise of self-defence is reasonable and proportionate is a question of fact. MOORIS V. NUGENT In this case when the defendant was passing by the plaintiff’s house the plaintiff’s dog ran out and bit the defendant’s gaiter (a protective cloth for leg or ankle). As the defendant turned round and raised his gun to shoot the dog, it was running away. Despite this the defendant shot the dog. It was held that his action was not justified VISHVAS ABA KURANA V. STATE OF MAHARASHTRA (AIR 1978 SC 414)

The Supreme court held that it is well settled that to claim a right of private defence extending to voluntary causing of death. The accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. In this case the appellant had shot at several person who were unarmed. Ii. Private defence of property:The right to private defence extends to one’s property also. But right to private defence in respect of one’s property can be exercised against a trespasser only if there is actual possession over the property or there is right of possession of property. 6. STATUTORY AUTHORITY It is a well recognised defence in cases where injury to the plaintiff is in consequence of an act authorised under a statute. The act would have constituted a tort had there been no statutory authority for its comission. GREAT CENTRAL RAILWAY V. HEWLETT It is undoubtedly a well-settled principle of law that when statutory power are conferred they must be exercised with reasonable care, so that if those who exercise them could be reasonable precaution have prevented an injury which has been occasioned, or likely to be occasioned by their exercise, damage for negligence my be recovered. DAMAGE INCIDENT TO AUTHORIZED ACTS It has been noted that if a statute authorises the doing of an act and damage is caused in doing of that thing, no cause will lie provided that the persons who are statutorily authorised to do the thing act reasonably and without negligence. The principle has been extended to cover all those damages which are incidental to authorised works. The respondant railway company was authorised to run the railways. The appellant’s woods on the adjoining caught fire from sparks emitted from the engine of the respondent’s railway company. It was established that due care and caution had been taken by the respondent in running the railways.

It was held that they were not liable because “ the sanction of the legislature carries with it this consequence, that if damage results from the use of such thing. 7. NECESSITY SHAKESPHERE writes that necessity knows no law. It is relevant in law of torts. Necessity may negative liability in tort provided that it has not arisen from the defendant’s own negligence. Its basis is a mixture of charity, the maintenance of public good and self protection and is probably limited to cases involving an urgent situation of imminent peril. 8. PLAINTIFF A WRONG DOER The mere fact that the plaintiff is himself a wrongdoer does not disentitle him for recovery “unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of same transaction. BIRD V. HOLBROOK The defendant had set spring guns without notice in his gardens. The plaintiff was injured by a spring guns while he was trespassing on the defendant’s wall by climbing over his wall in pursuit of a fowl.(a bird kept for flesh and eggs) If the plaintiff had not trespassed. He would not have suffered the injury. Yet it was held that he was entitled to recover; the plaintiff may be held liable for his wrongful acts, but the mere fact that the plaintiff is wrongdoer does not disable him from recovering damages. But this principle will not apply if unlawful act or conduct on plaintiff’s own part is connected with the harm suffered by him as part of the same transaction. 9. EXERCISING OF COMMON RIGHTS Exercising of common or ordinary rights is not an actionable wrong even though it may cause damage. This is so because otherwise it will not be possible to carry on common affairs of life without various things which are more or less likely to cause loss or inconvenience to others, or even which obviously tend that way. Competition in trade and business is permissible even though others may be damaged provided of course legal rights of others are not infringed.

10. JUDICIAL AND QUASI-JUDICIAL ACTS No action lies against a judge for acts done or words spoken in the exercise of his judicial functions. This principle applied even though what he does or speaks is not in the honest exercise of his judicial functions and his motive is malicious. This principle of immunity applies to judges. Judges should be allowed full liberty in exercise of their judicial functions with independence and without fear of consequences of judicial functions. If a judge commits judicial errors, law provides a remedy in some form of appeal to higher courts. Criminal prosecution can be launched against him for judicial corruption but in neither case can he be called to defend his judgment in a civil court. Judicial officer’s protection Act, 1850 provides that no judge or other person acting judicially shall be liable to be sued in any civil court for any act done by him in the discharge of his judicial duty, Indian decisions however, make a distinction between acts of judges within the jurisdiction of a court and acts outside the jurisdiction of a court STATE OF U.P V TULSI RAM (AIR 1971 ALL 162) A magistrate negligently signed an order for the arrest of five persons, Out of the said 5 persons two were acquitted by the High court. Without looking into the order of the High court, the magistrate signed the arrest of all the 5 persons. The said two persons brought an action against the judge for recovering damages. The Allahabad high court held that the Judicial officer’s Protection Act 1850 did not extend to executive or administrative functions. QUASI JUDICIAL ACTS Person exercising quasi-judicial authority are also immune from civil action provided that they observe the rules of natural justice and statutory conventional rules concerned. 11. EXECUTIVE ACTS

No action will lie against an officer who executes the orders of a public authority, which are apparently valid. So is the case with the execution of the orders of a court of law. This immunity is based upon the principle that it officers are not accorded this immunity, it will not be possible to carry on the administration. But a public officer may be held liable if he is guilty of misfeasance and damages resulting from in the exercise of powers conferred on him by law. Indian Judicial officer’s protection Act, 1850 protects officers of courts. 12. CONTRIBUTORY NEGLIGENCE: In a case brought by a plaintiff against the defendant on the ground of negligence. If even the plaintiff is responsible for damages because of the contributory negligence by the plaintiff himself then it defence for the defendant. Or

What is vicarious liability? Explain with decided cases. INTRODUTION:Generally a man is liable for his own wrongful acts. He is not liable for the wrongful acts of others. But under certain circumstances a man may be held liable for the wrongful acts of others. This is popularly known as ‘vicarious liability’. The term vicarious liability denotes where A is liable to B for the wrongful act of C. here A is liable because there is a relationship which exists between A and C hence A will be liable for the wrongs done by C. Such relationship may be like Parents, guardians, master and servant, Principal and servant, Partners etc. The word ‘vicarious’ is derived from the Latin word ‘vicar’ which literally means acting as a substitute on behalf of someone else as a delegate or under that person’s delegated authority. Reasons for Vicarious Liability or basis of vicarious liability Vicarious liability is based upon the principles of 1. “RESPONDENT SUPERIOR” (i.e the responsibility must be that of the superior and 2. QUIFACIT PER ALIUM FACIT PER SE (i.e he who acts through others is deemed in law as doing it himself).

But neither of these two principles through others is deemed in law as doing it himself. 1. Liability of Principal for the wrongful acts of his Agent. When an agent commits a wrongful act in course of his principal’s business, the Principal is also held liable along with the agent. The agent is liable because he has done the wrongful act while the Principal’s liability is due to the agent-principal relationship. 2. Liability of partners of a firm. All partners may be liable jointly or severally for any wrongful act done by any one or more of the partners in course of the firms business. 3. Parent’s Liability for wrongful acts of their children The principle underlying law of tort is to see that the claims of the claimant are redressed by the person who is at fault. Therefore, if the parent were not made liable for the wrongful acts of their children/ward, this purpose of law would have been defeated. It is for this reason they are held vicariously liable for the wrongful acts of their children or ward as the case may be. The basis of this liability is implied negligence of the parent or guardian to keep their children under proper control. 4. Master’s Liability for torts committed by the servant. Master and Servant:The Liability of a master for torts committed in the course of employment is joint and several. A master is vicariously liable for the act of his servant acting in the course of his employment. Unless the act is done in the course of employment, the servant’s act does not make the employer liable. For the master’s liability to arise, the following essential must be there:A. The person committing the tort must be servant. B. The tort committed by the servant must be in the course of his employment. C. The act must be a wrongful act authorized by the master or a wrongful and unauthorized mode of doing some act authorized by master. THE COURSE OF EMPLOYMENT. One of the essential conditions for the vicarious liability of master for the tort committed by the servant is that the tort must have been committed in the course of employment.

But it is equally well settled that if the servant at the time of the accident, is not acting within the course of employment but is doing something for himself the master is not liable. RICKETT’S CASE The driver of the omnibus asked the conductor to drive the omnibus and turn it round to make it face in the right direction for the next journey. The master was held liable vicariously because the driver was negligent in the performance of the master’s work. The driver in fact was seated by the side of the conductor at the time when the omnibus was turned round. The turning round of the vehicle was an act within the employer’s business and not something outside it. IN TRUST CO. LTD V DE SILVA It is not well settled principle that the person in control of a carriage or motor vehicle though not actually driving…is liable for the negligence of the driver over whom he has the right to exercise control. This principle is applicable when the person owning the vehicle is present. BEARD V. LONDON GENERAL OMNIBUS CO. The conductor attempted to turn the omnibus on his own initiative and caused the accident. The Company was held not liable because it was not a part of the conductor’s duty to drive the omnibus. It was not negligence in the course of employment. ENGLEHARI V. FARRNNT & CO. Two servants were engaged upon their master’s business. One was to drive a cart and mind the horses and other boy travelling in the car was to deliver parcels. The driver left the cart unattended and the boy drove it to deliver the parcels and caused the accident. The master was held liable. The driver ought to have known that if he left the car the boy would drive it in the fulfillment of the work of the master. When the driver left the car in the charge of the boy, he acted negligently in the course of his master’s business.

No doubt “the effective cause was the negligence of the servant which made the master responsible but that is not the whole of the matter. MAIN INCIDENTS OF MASTER’S LIABILITY FOR THE TORTS OF HIS SERVANTS 1. CARELESSNESS OF SERVANT:If the servant show carelessness in his work and a damage is occurred the master will be liable for the wrongful act of the servant. CENTURY INSURANCE CO. LTD BOARD.

V. NORTHERN IRELAND ROAD TRANSPORT

Where the driver of a petrol lorry while transferring petrol from the lorry to an underground tank, struck a match to lit a cigarette and threw it on the floor and thereby caused a fire and explosion which did great damage The masters were held liable for servant’s negligent method of conduction the work. 2. MISTAKE OF SERVANT:The master will also be held vicariously liable if the servant during the course of employment commits a mistake in the performance of his duties and thereby causes injury or damage to the 3rd party. The mistake may consist in excess or mistaken execution of a lawful authority. BAYLEY V. MANCHESTER, SHEFFIELD AND LINCOLNSHIRE RLY The plaintiff was violently pulled out a train because the porter of the defendants mistakenly thought that the train was not going to Macclesfield (which was the destination of the plaintiff) but elsewhere. This was despite the fact that the plaintiff told the porter that his destination was Macclesfield and the train was really going there. The defendants were held vicariously liable for the wrongful act of the porter. 3. WILFUL WRONG OF SERVANT:A Servant may make his master vicariously liable by committing a willful wrong. But for master’s liability to arise, it is necessary that the wrongful act of the servant must have been committed in the course of employment. This rule will apply even if the act in question was expressly forbidden.

Limpus V. London General Omnibus Co A driver of the omnibus owned by the defendant had been expressly forbidden to race, with or obstructs other omnibuses. Despite this, they obstructed the omnibus of the plaintiff, causing a collision which caused damage to it. He did this for promoting the defendants business (ie.to carry passenger) competing with their rivals. The defendants were held liable. So long as the servant is acting within the course of his employment the maser will be vicariously liable even though servant intended to benefit himself out of the wrongful act in question. 4. FRAUD OF SERVANT. In case of fraud the master will be liable so far as the servant acts within the course of employment. Lloyd V.Grace, Smith & Co. As in the case of fraud it is not necessary for the master’s liability to arise that the servant acted for the benefit of his master and not his own benefit. 5. THEFT BY SERVANT Previously it was held that master shall not be liable for the theft committed by his servant but in MORRIS V. C.W MARTIN AND SONS LTD. It was held that if the servant steals the goods which master has in his possession as a bailee, the master will be liable to the bailor, In this case the plaintiff delivered her fur coat to a person (A). With the consent of the plaintiff, (A) the cleaner of the coat sent it to an expert cleaners. The defendant in their turn gave it to their servant, say B for cleaning. M stole the coat. The court of Appeal held the defendants liable on the ground that they were responsible for loss of the goods being a bailee. 6. DAMAGE TO GOODS BAILED:In case the servant causes damage to the goods bailed with the master, the same law will apply as in the case of theft of goods by servant. CONCLUSION:-

In the concept of vicarious liability for liability of the Master to exists the servant should be under the course of employment and for the carelessness, theft, negligence of the servant the master will be liable.

(b). Some military employees to the Government found firewood lying by the side of the river. They took it and used it for camp fire and fuel, under the impression that it belonged to Government. The plaintiff, the real owner of the wood, brought an action against government. Is the government liable? Solution Yes, the government is liable for the wrong act done by Military employees. The facts of the problem is similar to one of the leading case. ROOP LAL V. UNION OF INDIA (AIR 1972 J & K 22) In this some military jawans found some firewood lying by river side and carried the same away for purposes of camp fire and fuel. It turned out that the wood belonged to the plaintiff. The plaintiff brought an action against the Union of India for the tort which was alleged to have been committed by its servants. The State was held liable. So in the above mentioned problem Government shall be liable for the wrong done by the military employees according to the principles of vicarious liability. OR. “A” has given some amount and cheque to his friend, who was an employee of the bank for depositing in the A’s amount. But the friend instead of depositing in the A’s account misappropriated it. Is the bank liable? Solution:- No, the bank is not liable The reasons are as follows. The above mentioned problem is similar to the facts of one of the leading case. STATE BANK OF INDIA V. SHYAMA DEVI (1978) 3 SCC 399. In this a lady gave some money to be deposited in the State Bank of India to her neighbour who was a employee clerk in that branch of the bank.

The said clerk made an entry for deposit of the money in her pass book but instead of depositing it, misappropriated it fraudulently, when the lady came to know about non-deposit of the said amount to her credit, she sued the bank. The bank disowned liability for the act of misappropriation committed by the employee (clerk who was the neighbour of the lady). It was held that the lady had given the money for deposition in the Bank as her agent and therefore she was herself responsible for this tortious act and not the bank. Hence the case was dismissed and the lady was not able to claim her damages. So in the above mentioned problem also “A” gave his friend in personal capacity and belief to deposit the money but it was misappropriated. Hence the Bank shall not be liable for the misappropriation in the above mentioned problem. Master will not be liable for deliberate wrongful acts of the servant. Where the servant while working for his master has done the wrongful ac for his selfish interest, benefit or amusement, then the master will not be liable for the consequences of servant’s such acts. Q.No.3. (a). Explain the ingredients of tort of negligence with the help of decided cases. Introduction:Negligence as a tort is an actionable wrong which consist in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill by which neglect the plaintiff has suffered injury to his person or property. Negligence for the purpose of tort law is a state of mind or unreasonable conduct i.e. conduct which a reasonable man would avoid on the ground that it may result in harm to others. Negligence has been defined as “breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff”. Alderson, in a case BLYTH V. BIRMINGHAM WATERWORKS CO. “Negligence is the omission to do something which a reasonable man guided upon these considerations which ordinarily regulate human affairs, would do, or doing something which a prudent or reasonable man would not do” LOCHGELLY IRON AND COAL CO V. M MULLAN

Lord Wright observed that “negligence means more than needless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.” The definition given by Alderson assumes a duty to take care; it also assumes that the degree of care is to be measured by the standard of a reasonable man. So negligence is a breach of duty to take care may be imposed by statute or it may arise due to relation in which one may stand to another. i.e, when the person or property of one is in such proximity to the person or property of another that if due care is not taken, damage may be caused by one to the other. STATUTORY NEGLIGENCE :- When negligence is a breach of duty to take care imposed by law. ACTIONABLE NEGLIGENCE:circumstances of a particular case.

When the breach of duty to take care arising out of

MACHINDRANATH KERNATH

KASAR V. D.S MYLARAPPA (AIR 2008 SC 2545)

The Supreme court observed that although there is no statutory definition of negligence, ordinarily it would mean omission of duty to do something which a reasonable man guided upon those considerations, ordinarily by reason of conduct of human affairs would do or obliged to do or by doing something which a reasonable or prudent man would not do. ESSENTIAL OF NEGLIGENCE 1. 2. 3. 4.

That the defendant owed a duty of care. That the defendant owed a duty of care towards the plaintiff. That the defendant either committed a breach of that duty or failed to perform that duty. That there was consequential damage to the plaintiff.

1. THAT THE DEFENDANT OWED A DUTY OF CARE. Negligence is not but breach of a duty to take care. That duty arises by reason of relationship in which one person stands to another person or authority. Such relationship may arise in a variety of circumstances. The basic duty of care or precaution is always implied where a danger has been created by a person or authority, irrespective of the fact as to whether the Legislature has authorized or not the creation of such danger. DR. C. B. SINGH V. THE CANTONMENT BOARD, AGRA (AIR 1974 ALL 147 PG.153) In this case Dr. C.B.Singh and Dr.R.V.Singh who were professor in one of the medical college filed a suit against Cantonment Board, Agra. On 10.9.1955 about 10.P.M. along with others

were going to see Taj Mahal in the car owned by C. B.Singh and he was driving the car in a normal speed of 15 miles per hour. The car suddenly collided with a traffic island of the crossing of the Mall and Metcaff Road. The said traffic island was wrongly and negligently built by the defendant Board at a very inconvenient spot in or about the middle of the Mall Road. There were no overhead lights so as to make it noticeable for vehicles using the road at night. The defendants were charged with the duty to take care in maintenance of the road. Because of the collision the plaintiffs sustained injuries. It was held that the defendants were held liable to pay damages. DONOGHUE V. STEVENSON (GINGER BEER CASE) A retailer sold a bottle of ginger-beer to a person, say X. X offered the contents of the bottle to a young women (plaintiff) The plaintiff consumed the contents of the bottle which included the decomposed remains of snail. The ginger beer was in an opaque bottle of dark colour and as such any foreign element could not be detected by inspection. The Plaintiff sued the manufacturer (from whom the retailer had purchased the bottle) for negligence alleging that she became seriously ill after consuming the contents of the bottle. The question before the court was whether the manufacturer owed a duty to care towards the plaintiff. Lord Atkin observed “ 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 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 any injury to consumer’s life or property, owes a duty to the consumer to take that reasonable care in the preparation or putting up of the products will result in any injury to consumer’s life or property, owes a duty to the consumer to take that reasonable care. The defendant was liable in this case •

DUTY DEPENDS ON REASONABLE FORESEEABLITIY OF INJURY.

Whether the defendants owes a duty to the plaintiff or not depends on reasonable foreseeability of the injury to the plaintiff.

If at the time of the act or omission the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable. Duty to take care is the duty to avoid doing or omitting to do anything, the doing or omitting to do which may have as its reasonable and probable consequence injury to others and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed. To decide liability we have to determine what a reasonable man would have foreseen and thus form an idea of how he would have behaved under the circumstances. DR. M. MAYI GOWDA V. STATE OF KARNATAKA (II 1996 CP.J. 307) The complainant and 5 children of his family took an elephant joy-ride on 7.10.1972 at about 8.P.M. in Mysore Dasara Exhibition ground after having purchased tickets for the same. After taking a number of rounds while the complaints and other persons were in the process of getting down the cradle, the elephant became panicky in that rush hour and ran forward. The complainant was thrown on the ground as a result of which he received serious injuries resulting in total loss of eyesight of both the eyes. He was a medical practitioner. He claimed compensation of 9,90,000/It was found that it was a female elephant having participated in such rides and festivals for 13 years. It had acted in film shootings, various religious functions and honouring the V.I.P’s. It was held that there was no negligence on the part of the opposite parties who had organized the joy-ride. The reason of the accident was unusual and unfortunate behavior of the elephant, and therefore the complaint was dismissed. RURAL TRANSPORT SERVICE V. BEZLUM BIBI ( AIR 1980 CAL 165) The conductor of an overloaded bus invited passengers to travel on the roof of the bus. On the way, the bus swerved on the right side to overtake a cart. One of the passengers on the roof of the bus, Taher Seikh, was stuck by an overhanging branch of a tree. He fell down and received multiple injuries on the head, chest etc. and as a consequence thereof he died. In an action by Bezlum Bibi, the mother of the deceased, it was held that there was negligence on the part of both the driver and the conductor of the bus, and the defendant was held liable for the same. MUNICIPAL CORPORATION OF DELHI V. SUBHAGWANTI (AIR 1966 S.C 1750)

A clock tower situated in the heart of the city i.e., Chandni Chowk, Delhi collapsed causing a death of a number of person. The Structure was 80 years of old whereas its normal life was 40-45 years. The Municipal corporation of Delhi, which was having control of the structure had obviously failed to get the periodical check up and necessary repairs done. The Defendant corporation was, therefore, held liable to pay compensation for the consequences of the collapse of the structure. THE MUNICIPAL BOARD JAUNPUR, V. BRAHM KISHORE (AIR 1973 PAT. 168) The defendant had dug a ditch on a public road. The Plaintiff who was going on his cycle in the evening could not observe the ditch in the darkness fell into it and was injured. The defendant had failed to provide light, danger signal, caution notice or barricade, etc to prevent such accidents and was therefore held liable. It was also observed that the fact that the cyclist did not have any light fixed in the front of the cycle did not make any difference because light of the Kerosene lamp, which the cyclists generally use, could not still make the ditch visible. •

NO LIABILITY WHEN INJURY NOT FORESEEABLE

CATES V. MONGINI BROS (1917) 19 BOM L.R. 778 The plaintiff, a lady visitor to a restaurant was injured by the falling of the ceiling fan on her. The reason for the falling of the fan was a latent defect in the metal of the suspension rod of the fan. The defect could not have been discovered by a reasonable man. In an action against the defendants who were running the restaurant, it was held that since the harm was not foreseeable, they were not negligent and therefore were not liable for the loss to the lady plaintiff. RYAN V. YOUNGS The defendant’s servant, while driving a lorry, suddenly died, which resulted in an accident and consequently injury to the plaintiff. The driver appeared to be quite healthy and the defendant could not foresee his sudden death. It was held that the accident was due to an Act of God and, the defendant was not for the same. •

REASONABLE FORESEEABILITY DOES NOT MEAN REMOTE POSSIBILITY.

To establish negligence it is not enough to prove that the injury was foreseeable but a reasonable likelihood of the injury has to be shown because “foreseeability does not include any idea of likelihood at all”. The duty is to guard against probabilities rather than bare possibilities. FARDON V. HARCOURT-RIVINGTON The defendant parked his car by the road side and left a dog inside the car. The dog jumped about and smashed a glass panel. A splinter from this glass injured the plaintiff while he was walking past the car. It was held that the accident being very unlikely there was no negligence in not taking a precaution against it and therefore the defendant was not liable. SUKHRAJI V. STATE ROAD TRANSPORT CORPORATION, CALCUTTA (AIR 1966 CAL 620) The plaintiff’s son a boy of 14 years got down from a moving tramcar and while he tried to cross the road, he was run over by an omnibus which was about to overtake the said tramcar and on seeing the boy in front of his bus, the driver of the omnibus had applied the brakes with all his might but the boy could not be save. It was held that the driver of the bus could not anticipate that certain passengers would jump off a moving tramcar that no one was getting down from it. If somebody suddenly came in front of a fast moving vehicle like omnibus without any warning to the driver, the driver cannot be made liable for negligence. It was held to be negligence on the part of the deceased himself. 2. BREACH OF DUTY Breach of duty means non-observance of due care which is required in a particular situation. What is standard of care required? The standard is that of a reasonable man or of an ordinarily prudent man. If the defendant has acted like a reasonably prudent man, there is no negligence. The law requires taking of certain points into consideration to determine the standard of care required. a. The importance of the object to be attained. b. The magnitude of the risk c. The amount of consideration for which services etc are offered.

a. The importance of the object to be attained:The law does not require greatest possible care but the care required is that of a reasonable man under certain circumstances. The law permits taking chance of some measures of risks so that in public interest various kinds of activities should go on. Ex:- a certain speed of a fire engine or a ambulance vehicle but the same speed may be an act of negligence for another vehicle. LATIMER V. A.E.C LTD Due to an exceptionally heavy rainstorm, the respondent’s factory was flooded with water. Some oily substance got mixed with water. After the water drained the oil remained on the floor and became slippery. Respondents spread sawdust on the floor but certain places it was not spread due to lack of supply. The appellant one of the employee in the factory slipped and got injured. He sued the respondents for negligence and contended that the respondents should have closed down the factory as precautions until the danger have disappeared. The court held that the risk created by slippery floor was not so great as to justify the precaution of closing down the factory with over four thousand workmen. The respondents had acted like a prudent man and therefore they were not liable for negligence. B. The magnitude of risk The degree of care required varies according to each situation. What may be a careful act in one situation may be a negligent act in another. The law does not demand the same amount of care under all situations. The kind of risk involved determines the precautions which the defendants is expected to take. MYSORE STATE ROAD TRANSPORT CORPORATION V. ALBERT DISA Negligence is failure in the duty to take due care. The expression “due” connotes that degree of care which a reasonable man ought to take in a given set of circumstances. In deciding what care was called for by a particular situation, one useful test is to enquire how obvious the risk must have been to an ordinary prudent man. The question in each case, therefore depends upon its own facts.

The degree of care depends upon the magnitude of risk which could have been foreseen by a reasonable and prudent man. Ex. 1. The driver of a car have to take more care when it is drizzling than on a normal day. 3. The person carrying a loaded gun should take more care than carrying a stick. 4. Great care should be to a vehicle carrying petrol than a vehicle carrying milk. NIRMAL .V. TAMIL NADU ELECTRICITY BOARD (A.I.R 1984 MAD 201) High tension wire running over a farm got snapped and the plaintiff’s husband, who treaded upon the wire, was instantaneously struck dead by electrocution. It was held that the defendants, who were maintaining he said wire had failed to maintain them properly, which made the wires to snap and they had further failed to provide a device whereby the snapped wire would have automatically become dead and harmless. The defendants were held liable for negligence. BHAGWAT SARUP V. HIMALAYA GAS CO. ( AIR 1985 H.P.41) The plaintiff booked replacement of a cooking gas cylinder with the defendant, who had the gas agency in Shimla. The defendant’s delivery man took a cylinder into the plaintiff’s house. The cap of the cylinder being defective he tried to open it by knocking at the same with the axe. This resulted in damage to the cylinder and leaking of gas therefrom. Some fire was already burning in the kitchen and the leaked gas also caught fire. As a consequence of the fire, the plaintiff’s daughter died, some other family members received severe burn injuries and some property inside the house was also destroyed by fire. It was held that the defendant’s servant was negligent in opening the cylinder and the defendant was liable for consequences of such negligence. GLASGOW CORP V. TAYLOR In this case poisonous berries were grown in a public garden under the control of the corporation. The berries looked like cherries and thus had tempting appearance for the children. A child aged 7 years ate those berries and died. It was found that the shrub bearing the berries was neither properly fenced nor a notice regarding the deadly character of the berries was displayed. It was held that the defendants were liable for negligence.

C. The amount of consideration for which services etc are offered. The degree of care depends also on the kind of services offered by the defendant and the consideration charged therefor from the plaintiff. For ex:- a guest house or a star hotel worth of Rs. 3000 or more a day would justified in demanding higher levels of care compared to a hotel of lesser amount. 3. DAMAGE It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff. The plaintiff has also to show that the damage thus caused is not too remote a consequence of the defendant’s negligence. The duty to assess the damages is however entirely upon the court. In doing the court resorts to the rules which regulate the practice of court. PROOF OF NEGLIGENCE (RES IPSA LOQUITUR) As a general rule, it is for the plaintiff to prove that the defendant was negligent. The initial burden of making out at least a prima facie case of negligence as against the defendant lies heavily on the plaintiff, but once this onus is discharged it will be for the defendant to prove that the incident was the result of inevitable accident or contributory negligence on the part of the plaintiff. If the plaintiff is not able to prove negligence on the part of the defendant the defendant cannot be made liable. Direct evidence of the negligence however is not always necessary and the same may be inferred from the circumstances of the case. FOREIGN MATTER LEFT INSIDE AFTER SURGERY IN NIHAL KAUR . V. DIRECTOR, P.G.I, CHANDIGARH In this case the scissors were left in the body of a patient during the operation. Then his condition worsened and he died. Scissors were recovered from the ashes after cremation. Compensation of Rs. 1,20,000/- was awarded to the dependents of the deceased. MRS. APARNA DUTTA V. APOLLO HOSPITAL ENTERPRISES LTD (AIR 2000 MAD 340)

The plaintiff got herself operated for the removal of her uterus in the defendant hospital, as there was diagnosed to be a cyst in the area of one of her ovaries. Due to the negligence of the hospital surgeon, who performed the operation, an abdominal pack was left in her abdomen. The same was removed by a second surgery. Leaving foreign matter in the body during the operation was held to be a case of res ipsa loquitur. The doctor who performed the operation and the hospital authorities were held liable to pay compensation of Rs. 50,000/- to the plaintiff for their negligence. Or

Explain the principle of Strict Liability and distinguish it from absolute liability with relevant case laws. ANSWER:INTRODUCTION STRICT LIABILITY:The Human activities can be classified from the point of view of their social utility, they can be classified into 3 groups. 1. Those which are prohibited by law such as crime. 2. Activities which are not prohibited by law, that is they are legally permissible. 3. There is yet another category or activities which the law could have prohibited but it has not done so because restricting them would have stumbled the social development and progress. Ex:- new scientific inventions, experimentation with explosives, poisonous gas, etc. which is very much required for human development. So a person may carry on these adventure-orientation activities but he has to do so at his own risk and he shall be liable for all consequences flowing from such activities whether he did them carefully or negligently. RYLANDS V. FLECTHER The defendant was an owner of a mill in Answorth. He wanted to improve water supply for his mill therefore, he employed the services of independent competent Engineers to construct a reservoir. In course of excavation work they notices some old shafts and passages to defendant’s land but did not block them. When the water was filled in the reservoir it ran through the porus shafts and flooded the plaintiffs coal mines on the adjoining land.

The defendant did not know about the shafts nor was he told about them by the qualified engineers who constructed the reservoir. When the plaintiff sued the defendant for damages, the court found that defendant was not negligent although the independent contractor’s were found to be negligent. But still the court held the defendant liable on the principle propounded by court of Exchequer Chamber as follows:“The person who for his own purposes brings on his land 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. These escapable things may include fire, gas, vapours, noise, smoke, petrol, electric current, explosives, dangerous animals, water etc. any amount of carefulness on his part is not going to save him from liability where his activity falls within the description of Rylands V. Fletcher rule. Since liability arises even without fault or negligence on the part of the defendant, the rule has also been called the principle of Strict liability. ESSENTIALS OF STRICT LIABILITY PRINCIPLE 1. ANYTHING LIKELY TO DO MISCHIEF IF IT ESCAPES:The first essential condition for the application of the rule is that the defendant must have brought on his land and kept there some dangerous things or anything likely to do mischief if it escapes. The rule has been limited to bringing and keeping on land dangerous thing which if escapes will do damage. That is to say, the rule has been limited to the things which are likely to escape and by escaping do damage or increase dangers to others. 2. ESCAPE:Yet another essential condition for the application of the rule is that the dangerous thing or anything likely to do mischief must escape. Mere brining and keeping a dangerous thing on one’s land is not an actionable wrong. Liability arises only when the dangerous thing escapes. If there is no escape there will be no liability. 3. THERE MUST HAVE BEEN NON-NATURAL USE OF LAND If the defendant bring or accumulates on his land something for a non-natural use of land itself attracts the rule of Strict Liability. Noble v. Harrison

A Branch of a beech tree growing on defendant’s land was overhanging the highway and in a fine weather it suddenly broke and fell upon plaintiffs vehicle which was passing along the highway. The breaking of the branch was sudden and undiscoverable. Therefore this was held to be the natural used and the case was not covered under the Rylands V. Fletcher rule. Defendant was held not liable. ABSOLUTE LIABILITY OLEUM FERTILIZER INDUSTRIES AND ANOTHER V. UNION OF INDIA AND OTHERS (AIR 1987 SC 965) In this case a writ petition was brought by way of public interest litigation and raised some seminal question concerning hazardous products, the basis on which damages in case of such liability should be qualified and whether such large enterprises should be allowed to continue to function in thickly populated areas and if they are permitted so to function, what measures must be taken for the purpose of reducing to a minimum the hazard the workmen and the community living in the neighbourhood. Until the Bhopal tragedy no one, neither the management of Shriram Foods and Fertilizers Industries nor the Government seemed to have bothered at all about the hazardous character of caustic chlorine plant of shriram. But as pointed out by the Supreme Court, the Bhopal Disaster shook the lethargy of everyone and triggered off a new wave of consciousness and every Government became alerted to the necessity of examining whether industries employing hazardous technology and producing dangerous commodities were equipped with proper and adequate safety and pollution control devices and whether they posed nay danger to the workmen and the community living around them. Facts of the case. Delhi Cloth Mills is a public limited company having its registered office in Delhi. It runs an enterprise called Shriram Foods and Fertilizer industries and this enterprise has several units engaged in the manufacture of caustic soda, chlorine, hydrochloric acid, stable bleaching powder, superphosphate, vanashpati, soap, sulphuric acid, aluminium, anyhrons, sodium sulphate, high test hydrochloride and active earth. These units are all set up in a single complex situated in approximately 76 acres and they are surrounded by thickly populated colonies such as Punjabi Bagh, West patel Nagar, Karanpura, etc within the radius of 3 km from the complex there is a populatin of of 2,00,000.

On Dec 4th 1985 a major leakage of oleum gas took place from one on the units of Shriram and this leakage affected a large number of persons, both amongst workmen and the public, and according to the petitioner one practicing Advocate also died on account of inhalation of oleum gas. The leakage resulted from the brusting of the tank containing oleum gas as a result of the collapse of the structure on which it was mounted and created a scare amongst the people residing in that area. Immediately 2 days after the leakage another leakage, though this time a minor one, took place as a result of escape of oleum gas from the joints of a pipe. One of the question for the consideration before the supreme court was 1. Whether the plant can be allowed to recommence the operation in its present site, state, and condition. 2. Whether caustic chlorine plant should be directed to be shifted and relocated at some other place, 3. Whether the caustic chlorine plant should be allowed to be restarted by the management of Shriram, subject to stringent conditions. The Supreme court added “we would therefor like to impress upon the Government of India to evolve a national policy for location of Chemical and Hazardous Industries in areas where there is little hazard or risk to the community and when hazardous industries are located in such areas every care must be taken to see that large human habitation does not grow around them. They should be preferably be given belt of 1 to 5 km. width around such hazardous industries. In this case the Supreme Court enunciated and applied a new principle of Strict and absolute liability in respect of hazardous or inherently dangerous industry. Justice Bhagwati .C.J. observed that, We cannot allow our judicial thinking to be considered to be conscripted by reference to the law as it prevails in England or for that matter in any other foreign country. An enterprise engaged in dangerous activity must be conducted in the highest standard 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.

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 the hazardous or inherently dangerous activity of the enterprise.

(b)

Elements of nuisance

NUISANCE The origin of the tort of nuisance is to be found in the French word nuire and latin term nocere which means to hurt or to annoy. According to Black-stone nuisance is something that causes damage inconvenience and annoyance. Nuisance as a tort means an unlawful interference with a person’s use or enjoyment of land, or some right over or in connection with it. Acts interfering with comfort, health or safety are the examples of it. The interference may be in any way, Eg:- noise, vibrations, heat, smoke, smell, fumes, water, gas, electricity, excavation or disease producing germs. In certain situation trespass and Nuisance feels similar. Both term have lot of difference. KINDS OF NUISANCE 1. PUBLIC OR COMMON NUISANCE 2. PRIVATE NUISANCE, OR TORT OF NUISANCE. 1. PUBLIC NUISANCE Public nuisance besides being a tort is also a crime. Public Nuisance is a crime whereas private nuisance is a civil wrong. Public Nuisance is interference with a right of public in general and is punishable as an offence. Obstructing a public way by digging a trench, or constructing structures on it are few examples Public nuisance is one which materially affects the reasonable comfort and convenience of life of a sizeable class of public which come within the sphere of its operation. The question whether the number of person affected is sufficient to constitute a sizable class is one of fact in each case.

ATTORNEY-GENERAL V. P.Y.A.QUARRIES LTD It is observed in this case that a public nuisance is one which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to except one person as distinct from the community at large to take proceedings to put a stop to it. The activities like quarries, blasting stones, dust, noise etc effects the public or a cross-section of the society it will be actionable as a public nuisance and it does not matter that in fact only a small number of people use the facility. Under section 133 of the Cr.P.C 1973 empowers the district Magistrate to pass order for the removal of public nuisance. For this purpose the word Public may include a class or community residing in a particular locality. Public place generally implies a place to which the public in general have access by right, permission, usage, custom or otherwise. •

Ram Avtar V. State of U.P. (AIR 1962 SC 1794)

•

DR. RAM RAJ SINGH V. BABULAL (AIR 1982 ALL 285)

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. It may be in 3 forms 1. Unlawful interference or encroachment on a neighbour’s land. 2. Interference with the enjoyment of land; 3. Direct material damage. ESSENTIAL OF A PRIVATE RIGHT The essential of a private nuisance, which the plaintiff has to prove against the defendant are as follows; 1. Unreasonable interference. 2. Such interference should related to peaceful use or enjoyment of land or any right to land. 3. Damage should have been caused

1. UNREASONABLE INTERFERENCE:In order to succeed in an action for private nuisance against the defendant the plaintiff has to show that there was unreasonable interference to his land which caused him damage or discomfort. If the interference is not unreasonable no action can lie for nuisance. SADLEIGH DONFILED V. O CALLAGHAM The Judge rightly points out that “that a balance has to be maintained between the right of the occupier to do what he likes with his own land, and the right of his neighbour not to be interfered with”. An unreasonable interference cannot be justified on the ground that it was for public good or all possible care had been taken to avoid the nuisance. ST. HELAN’S SMELTING CO. V. TIPPING One of a landmark case on nuisance involving the impact of industrial pollution on local inhabitants. In this case, the fumes emitted from the defendant’s company caused damage to the plaintiff’s trees and shrubs. Such damage being an injury to property. The court held that the possessor or occupier of land is entitled to an injunction and he is also entitled to compensation for the diminution in the utility of his land. PRESIDENT, GURUVAYUR DEVASTHAN MANAGEMENT COMMITTEE V. SUPERINTENDENT OF POLICE, TRICHUR, In this case the residents of the Devasthan locality complained against the Devasthan that the daily morning prayer, devotional songs, relayed on the loud speaker were causing noise pollution in the surrounding area. Therefore the defendants should be restrained from causing this nuisance. The court held that the noise was confined to the temple only and the noise was not so loud. Moreover the loudspeaker was used for information about missing person and property, money etc which was in public interest. Hence the noise from devasthan could not be said unreasonable. ABNORMAL SENSITIVITY OF THE PLAINTIFF.

In HEALTH V. MAYOR OF BRIGHTON The court held that an act otherwise reasonable, does not become unreasonable to be actionable as a nuisance if the damage even though substantial, is caused due to sensitiveness of the plaintiff. In this case the court refused to grant injunction to the trustees of the Brighton church to restrain a “buzzing noise” from the defendant’s power station located near it. The noise did not cause annoyance or discomfort to people except the trustees nor was it loud enough to distract the attention of ordinary persons attending the church. NUISANCE IS NOT ACTIONABLE IF IT IS OCCASIONAL. DOLLMAN V. HILLMAN LTD The plaintiff while walking on the pavement slipped on a piece of meat lying there outside the butcher’s shop. He sued the defendant for nuisance. The defendant was held not liable as an isolated event for which the defendant would have perhaps been held liable for negligence but not for nuisance. 2. INTERFERENCE WITH THE USE AND ENJOYMENT OF LAND Interference with the use and enjoyment of land may be in two forms, namely a. By causing damage to property itself b. Injury to comfort or health of the occupants of certain property. Any unauthorized interference with the property of another person through some object whether tangible or intangible, which causes damage to the property, will be an actionable nuisance. Thus to allow the branches of tree to escape to neighbour land is nuisance. Also allowing smoke, water, smells, fumes etc from one’s premises to another’s land will be an actionable tort or private nuisance. SADASHIV CHETTY V. RANGAPPA RAJU (1918) MAD 293. The defendant oil mill emitted obnoxious smell and caused unbearable noise which interfered with the near-by resident’s peaceful enjoyment of their land, the defendant was therefore, held liable for causing nuisance and directed to prevent the cause of nuisance by adequate measures. KULDEEP SINGH V. SUBHASH CHANDRA JAIN (AIR 2000 SC 1410) The court held that the measure and quantum of damages in an existing nuisance may be easily assessed but it is not so in case of a nuisance which is likely to arise in future and therefore, grant

of injunction to prevent such possible nuisance is perhaps the only remedy available to the persons who are likely to suffer from such nuisance. ➢ INTERFERENCE WITH INCORPOREAL PROPERTY Every person has a right of support from neighbour’s land and therefore removal of such support lateral or from beneath will be an act of nuisance. COLES V. HOME OF COLONIAL STORES LTD The sunlight coming into the plaintiff’s room on the ground floor was obstructed due to construction of building by the defendant adjacent to that room. The plaintiff therefore sued the defendant alleging that obstruction to sun light had adversely affected his office work and he had to keep his electric lights on throughout the day. The court refused to grant injunction and held that substantial deprivation of light could not be said to be sufficient ground for nuisance. In India the right to light, water and air has been protected by section 15 of the Easement Act 1882 and section 25 of Limitation Act 1963. According to the Act a person who is peacefully enjoying the right of light and air on his land continuously for 20 years without interruption acquires a prescriptive right. ➢ INJURY TO HEALTH AND COMFORT Any unreasonable interference with health and comfort or enjoyment of property through an offensive trade is actionable as nuisance. GOLSTAUN V. DOONIA LAL SEAL The owner of a shellac manufacturing unit drained out a highly poisonous and harmful liquid in the municipality drain which caused blocking of the drain resulting in discomfort and inconvenience to the plaintiff. The court held the defendant liable for nuisance. 3. DAMAGE:Private nuisance not being actionable, the plaintiff is required to prove the damages caused to him due to defendant’s act of nuisance. Where nuisance involves the violation of a right to easement, the damage need not be proved because the prayer is usually for an injunction. KHIR SINGH V. BRIJLAL

The High court held that the claimant becomes entitled to special damages only when he successfully proves that the special damage suffered by him is in addition to the general damage suffered by other persons who are also affected by the defendant’s nuisance. DEFENCES AGAINST NUISANCE:1. The defendant cannot raise a plea that having knowledge about the existence of nuisance, the plaintiff chose to come to it and therefore, defendant is not liable. 2. It is no defence for the defendant to say that his act of nuisance was for public good. 3. Contribution of other’s act to aggravate nuisance is no defence to escape the defendant from his liability for nuisance. 4. It is no defence for the defendant to argue that the place from where the nuisance emanates is the only suitable place for carrying out the activity complained of. 5. The defendant will not be allowed to say that he exercised due care to prevent nuisance. REMEDIES 1. EXTRA-JUDICIAL REMEDY OF ABATEMENTENT OF NUISANCE:It is an extra judicial remedy which a person seeks by self-help without recourse to law-suit in a court. But this act should be done peacefully without causing any risk of life or property of the neighbour. Also the force should not be more than what is necessary in the circumstances of the case. 2. DAMAGE The injury or harm caused due the nuisance may be redressed by claim of damages against the defendant who caused nuisance. The quantum of damages is generally equivalent to actual harm or loss caused to the plaintiff. 3. INJUNCTION:Where the nuisance is of a continuing nature for which the remedy of damages may not be appropriate, the plaintiff can move to court for grant of an order of injunction against the defendant. Or

Kinds of damages 1. DAMAGES:-

The term damages for the purpose of law of torts means pecuniary sum which the plaintiff claims from the defendant for the tort committed by the latter against him. Damages are always unliquidated, which in other words means that they are not pre-determined and the quantum of damages is decided by the court according to the facts and circumstances of the case. While deciding the plaintiff’s claim for damages, the court generally takes into consideration the following facts1. Are the damages claimed by the plaintiff a consequential result of defendant’s wrongful act? 2. Where such damages foreseeable under the circumstances in which the tort is committed? 3. What should be the quantum of damages? IN COMMON CAUSE –A REGISTERED SOCIETY V. UNION OF INDIA (AIR 1999 SC 2979) The Supreme Court defined the term damages “ in its decision that it is a pecuniary sum which is awarded to plaintiff who succeeds in an action for torts or a breach of contract.” 1. NOMINAL DAMAGES:There may be cases in which the plaintiff has not suffered any pecuniary harm but his legal right has been violated due to the defendant’s wrongful act. Where there has been an infringement of the plaintiff’s legal right but he has suffered no actual loss or harm the courts generally award nominal damages. The word nominal itself suggest that the pecuniary sum awarded by the court to the plaintiff is wholly in recognition of his legal right which the defendant has violated though the plaintiff has not suffered any loss as such. Case law Ashby V. White In this case the court awardee merely 1 dollors because the plaintiff’s voting right was wrongfully denied to him by the presiding officer, at a voting booth, though he was not adversely affected by the deprivation of his right in any way. Nominal damages are generally awarded in cases coming under the maxim Injuria sine damno where plaintiff’s right is violated but he suffers no loss. 2. GENERAL OR REAL DAMAGES:-

General damages are called compensatory damages because the purpose of awarding such damages is to compensate the plaintiff for the actual loss suffered by him rather than imposing punitive damages. The award of general damages brings the plaintiff to his original position as if no wrong has been caused to him. These damages are neither intended to favour plaintiff with any monetary gain nor to suffer undue loss. Dipti V. Banwari Lal (AIR 1966 MP 239) A fifteen years old girl who was going to school on cycle was hit by a truck coming from the opposite direction and was seriously injured. The High Court of Madhya Pradesh held the defendant liable for negligence and awarded the plaintiff the cost of medical and other incidental expenses as also the damages for losing the opportunity of spending a happy future life due to permanent disability suffered by her. The Court however, noted that while assessing the prospective or future damage, the court must take into consideration the personal and family circumstances of the plaintiff. SORABJI V JAMSHETJI WADIA Bombay High court awarded a young man earning Rs. 400/- a month as a broker, Rs. 20,000/- as damages for loss of income and Rs. 10,000/- for the pain and suffering due to injuries in a motor accident leading to his prolonged disablement. This was besides Rs.6000/- for expenses on medical treatment. 3. SPECIAL DAMAGES:Special damages have to be specifically averred by the plaintiff in his plaint because the court cannot take cognizance of them unless they are specially mentioned and claimed by the plaintiff. The plaintiff has to prove that he sustained special damages along with general damages because of defendant wrongful act. Special Damages are the pecuniary equivalent of the additional loss sustained by the plaintiff beside the general damage. 4. CONTINUING DAMAGES:As a general rule, all the damages arising from a cause of action must be sued in a single suit and the law bars more than one suit for the same cause of action. Ex:- of a person has been crippled in an accident he should claim damages not only for the physical injury and medical expenses but also for the future damages such as loss of wages, or business, expectation of life etc in the same suit.

BRUNSDEN V. HUMPHREY Wherein a person who received damages for injury to his cab in a collision due to the defendant’s negligence was allowed to sue again for personal injury caused in the same accident. 5. EXEMPLARY DAMAGES:When the quantum of damages, awarded against the defendant are exorbitant, that is much more than the actual material loss suffered by the plaintiff, they are said to be exemplary or vindictive. They are sometimes also called as punitive damages because they are meant to deter the defendant from repeating his wrongful act and at the same time to leave a warning to others that such acts may lend them to pay heavily if committed intentionally, negligently or recklessly. The court generally award exemplary damages in the following cases1. Unlawful and unconstitutional acts done by the state or its authorities in an arbitrary and oppressive manner e.g. wrongful and malafide arrest made by police officials. 2. Where the defendant has done an act for his unjust enrichment. 3. Those torts for which award of punitive damages has already been prescribed by law. 4. In cases of defamation particularly that of women, the courts invariably order exemplary damages to deter the defendant and others to desist from indulging in such libelous statement. 5. CONTEMPTUOUS DAMAGE:It is awarded when the plaintiff has sustained no damage and his conduct is also equally reprehensible. In such cases the court generally forms an opinion that though technically speaking the defendant’s for action against the defendant on moral grounds. The plaintiff therefore had no reason to bring an action against the defendant the quantum of pecuniary compensation awarded by way of contemptuous damages is obviously nominal as the court has no appreciation for the conduct of the plaintiff either. KELLY VL SHESLOCK The defendant published libelous statement against the plaintiff in the newspaper alleging vulgar charges. In response to this publication, the plaintiff retorted and used abusive language against the said newspaper and called it a black spot for journalism. Expressing unhappiness about the plaintiff conduct, the court ordered payment of damages to him contemptuously.

Q.No.4.(a). Define Defamation and the defences available in an action for defamation. Introduction :A man’s reputation is considered to be his most valuable property. The Law of Defamation is based on the fundamental principle that everyone has a right to freedom of thought, expression, right to hold opinions and to receive and impart information and views, without interference by others. But exercise of these freedoms carries certain duties and responsibilities, which is subject to such restrictions as are necessary in a democratic society for protection or rights of others and for the maintenance of national security and judiciary’s impartiality. Definition:The Tort of defamation consists of publication of a false and defamatory statement concerning a person without any lawful justification. Section 499:Whoever by words either spoken or intended to be read or by signs or by visible representations, make 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 to defame that person. It further makes it clear that no imputation is said to harm a person’s reputation unless it directly or indirectly lowers the moral or character of that person in respect of his caste or lowers the credit of that person in the estimation of others, which is generally considered as disgraceful. Section 500:It is punishable with simple imprisonment for a term which may extend to two years or with fine, or with both. In general defamation is an injury to the reputation of a person. It is recognized as an inherent personal right of every person against the world at large. Therefore it is jus in rem in jurprudental term. MYROFT V. SLEIGHT One of the member of the fishermen’s trade union refused to support an official strike and therefore, the other trade unionlists alleged him of disloyalty.

The court refused to consider it as an defamation because its effect was limited only to the trade unionists, whereas other people might applaud the action and not think it defamatory. M.L. SINGHAL V. PRADEEP MATHUR. (AIR 1996 DEL 261) The defendant’s wife who was under the medical treatment as an indoor patient died due to the negligence of the hospital staff. Aggrieved by the wife’s death the defendant made a complaint against the concerned doctor alleging his negligence and incompetence in rendering proper treatment to the patients, with the result the doctor’s name was not considered for the higher post to which he was otherwise eligible. The doctor sued the defendant for defamation. The High court of Delhi held that an allegation against medical practitioner for negligence does not constitute a case for actionable defamation. KINDS OF DEFAMATION:There are two forms of defamation. 1. LIBEL 2. SLANDER 1. LIBEL:It is a representation made in some permanent form e.g. written, printed, picture, effigy, caricature, film, statute, model or any other physical symbol like fixing up gallows in front of a person’s house etc. 2. SLANDER:On the other hand, denotes defamatory statement or representation which are expressed by spoken words or its equivalent such as a wink, hissing, nod, gestures etc. The main differences between Libel and Slander is 1. Libel is visible and permanent in form whereas slander is transient in form. 2. Libel is both a crime as well as a tort, but slander is only a civil wrong and not a offence. 3. Libel is actionable per se whereas in the case of slander, the plaintiff has to prove that he suffered actual damages. 4. Libel generally results out of malice of the defendant towards the plaintiff whereas plaintiff is utterances made in sudden provocation. 5. In Libel there is a possibility of breach of peace, but it is not so in case of slander. 6. Libel being visible is concerned with eyes whereas slander is concerned with hearing that is faulty of ears.

7. Limitation for instituting criminal proceedings or civil suit against the defendant for Libel in India is one year. In Case of slander it is 2 years. 8. Slander is less damaging than Libel.

ESSENTIAL ELEMENTS OF DEFAMATION

1. STATEMENT MUST BE FALSE:In an action for defamation, the first thing that the plaintiff has to prove against the defendant is that the statement made by the latter against him was false. There may, however be cases where the statement made by defendant with reference to plaintiff is false but the defendant does not have the knowledge that it is false and publishes it bonafide and honestly believing it to be true. MARRISON V. RITCHIE AND CO. On the basis of information collected by the news reporter, the newspaper published that the plaintiff gave birth to a twin whereas she was married only one month ago. She sued the defendant newspaper for defamation. The defendant contended they believed the news reported by their reporter to be true and reliable hence they are not liable. The court rejected their contention and were liable for defamation. 2. STATEMETN MUST BE DEFAMATORY. A statement whether written or spoken, is defamatory if it tends to injure the reputation of the plaintiff and bellowers him in the estimation of the right thinking persons of society generally. It is no defence for the defendant to say that he did not intend to defame the plaintiff. Defamatory statements are mainly of two kinds namely 1. The statement which are prima facie defamatory in their natural and ordinary meaning. 2. The statement which are prima facie innocent, but are defamatory with reference to the plaintiff. A statement is said to be defamatory in its natural and ordinary sense where 1. It tends to form an adverse opinion among the right minded persons about the plaintiff’s reputation.

2. It tends to create hatred, contempt, ridicule, or dis-esteem about the plaintiff. 3. It tends to adversely affect his character or credit. 4. It tends to injure the trade, business or profession of the plaintiff. 5. it tends to cause the people shun or avoid the plaintiff. 6. it tends to degrade the plaintiff in the estimation of the right thinking person of the society. RAMADHARA V. SMT. PHULWATI BAI The defendant made an imputation against the plaintiff a widow of 45 yrs that she was a kept wife of the maternal uncle of the plaintiff’s daughter-in-law. The court held that these allegation were not merely vulgar but also imputed unchastity of the plaintiff and therefore actionable as tort of defamation. RAM JETHMALANI V. SUBRAMANIAN SWAMY(AIR 2006 DEL 300) The commission of inquiry constituted to inquire into the assassination of Late Prime Minister Rajeev Gandhi, the defendant who appeared as witness made wild allegations against the plaintiff a senior counsel, that he had been receiving money from LTTE. The defendant not only tendered concluding written submission before the commission but even read out the same in open court. It was held that this offending statement was quite unconnected with and irrelevant to the inquiry and it was a clear case of exceeding the limits of qualified privilege and showed actual malice of the defendant. Since the defendant refused to apologize and withdraw his offending statement, the court held him liable for defamation and awarded 5 lakh rupees in favour of the plaintiff. INNUENDO. Sometimes the statements may not be prime facie defamatory and they appear to be innocent in their natural and ordinary sense, but because of some latent or secondary meaning, the plaintiff may prove that they are defamatory and carry a libelous meaning with reference to him. Essential elements of Innuendo 1. Innuendo is a statement made by the defendant which appears to be innocent in its natural meaning and ordinarily sense, but the plaintiff proves that it carries a defamatory meaning with reference to him. 2. The test to decide whether a particular statement is innuendo or not, is objective and no subjective. That is the plaintiff has to prove that people in general considered that statement defamatory with reference to him.

3. The burden of proving that statement was defamatory with reference to the plaintiff lies on him. 4. The words used in the statement should give an indication they are aimed at the plaintiff. Intention or Malice is not an essential element for Defamation. It is not at all necessary for the plaintiff to show that the defendant intended to refer the statement to the plaintiff or he did so with any evil motive or against him. If the plaintiff can show that the statement made by the defendant caused injury to his reputation, the defendant will be held liable whether he did so intentionally, negligently or innocently. 3. THE STATEMENT MUST REFER TO THE PLAINTIFF. In an action for defamation, the plaintiff has to prove that the defamatory statement made by the defendant referred to the plaintiff, though his name might not have been expressly mentioned in that statement. Defamation being a personal wrong, a person can sue for his own defamation but not on behalf of any other person. Group or Class defamation:Where the defamatory statement refers to a group or class of individuals, no individual member of that group or class can sue unless he proves that the words, could reasonably considered to refer to him. Thus to say that ‘all lawyers are liers’ would not entitle a particular lawyer to sue for defamation unless his name is specifically referred in that statement. DHIRENDRA NATH V. RAJAT KANT BHADRA In this case it was ruled that where a spiritual head of a community is defamed in editorial in a newspaper an individual member of that community does not have a right to sue for defamation. DEFAMATION OF DECEASED PERSON. Generally, the defamatory statement made against a person who is dead are not actionable as a tort of defamation. However it may amount to defamation to impute anything to a deceased person if the imputation would have harmed the reputation of that person, if he would have been alive, and it is intended to hurt the feelings of his family or other relatives. Ex:- statement against a person that his mother lead a immoral life.

4. STATEMENT MUST BE PUBLISHED. The word Publication used in the context of tort of defamation is not to be interpreted to connote its popular meaning i.e. being in a printed form or giving publicity, but it implies the communication of the defamatory matter to some person or persons other than the person defamed. Repetition of Publication Every repetition of the defamatory matter is actionable as a fresh publication giving rise to a distinct cause of action. DEFENCES IN AN ACTION FOR DEFAMATION. 1. JUSTIFICATION. Where the defendant successfully proves that the statement alleged to be defamatory by the plaintiff are in substance true, it will be a complete defence to absolve him from liability. However in a criminal proceedings instituted against the accused for the offence of defamation under section 499 of IPC, truth will be available as a defence only when it is in public good. 2. FAIR COMMENT A comment may be said to be an expression based on facts i.e. the inference drawn by a person from the facts. The term fair comment implies comments honestly believed to be true and not vitiated by malice or untrue facts. In order to succeed in his defence of fair comment, the defendant must showa. The facts alleged are true. b. That the expression of opinion is such that an honest man having strong views would make. c. Subject matter of the comment is of public interest d. The facts relied on as founding the comment were in the defendant’s mind when he made it. 3. PRIVILEGE Privilege as a defence in a suit for defamation denotes an excuse or immunity conferred by law on statement or communication made on certain occasions however, defamatory or malicious they may be.

The justification for conferring these privilege on certain specified occasions is to enable a person to express his views freely and frankly on matters which are in the public interest or national interest. If the liberty of expression is not conferred on persons like Member of Parliament or legislators of State Assembly, how can they present their views on the matters of public or national interest freely without the fear of being sued for defamation. There are 2 kinds, 1. ABSOLUTE PRIVILEGE. This privilege is available in following cases. a. PARLIAMENTARY PROCEEDINGS b. FAIR AND ACCURATE REPORTS ETC OF THE PARLIAMENTARY PROCEEDINGS c. JUDICIAL PROCEEDINGS d. STATEMENT MADE BY OFFICERS OF THE STATE IN COURSE OF OFFICIAL DUTY. 2. QUALIFIED PRIVILEGE This privilege may extend to the following instances. 1. When the statement has been made in discharge of a duty which may be of a legal, moral or public nature. 2. When the statement is made in self defence. 3. When the communication are made in public interest. 4. Fair and accurate reports of the proceedings a. In parliament or b. In a court of justice c. In any public meeting 5. When the defendant has an interest in making the communication to a third person and that person has a corresponding interest receiving it. 6. When the statement is made for the redressal of a grievance. APOLOGY. Strictly speaking apology is not a defence to an action for defamation but it only a circumstance which may help in mitigating of damages.

OR.

Explain ‘False Imprisonment’. What are the remedies available in case of false imprisonment? Introduction FALSE IMPRISONMENT As a tort, false imprisonment implies total restraint of a person’s liberty without any lawful justification. It is a tort as well as an offence under Section 340 of the Indian Penal code called ‘wrongful confinement’. Dr. Winfield, looking to the nature and ingredients of this tort, the words ‘false’ and ‘imprisonment’ both appear to be somewhat misleading. The word used in the tort of false imprisonment denotes a ‘imprisonment’ used in this tort is not to be interpreted in its literal meaning that is, putting a person behind bars and fettering his freedom of movement. It is possible to commit the tort of false imprisonment without imprisoning him. Ex. If a person is restrained from leaving his own house or any part of it, or is forcibly detained in a public street, it will constitute the tort of false imprisonment. Thus the restraint of a man’s liberty may be in the open ground or even in his own house. False imprisonment is both, a crime and a tort. As confinement.

an offence it is known as wrongful

DEFINITION:False imprisonment may precisely be defined as an imposition of a total restraint upon the liberty of a person for any period, however short, without sufficient lawful justification. Where there is total restraint on the freedom of a person’s liberty and he is prevented from moving in any direction by threat or coercion, it will be a tort of false imprisonment. Ingredients:1. There should be total restraint on plaintiff’s liberty; and 2. It should be intentional and without any lawful justification; The plaintiff need not prove any wrongful intention, malice or negligence on the part of the defendant. It is for the defendant to prove the bona fide or justification for restraining the liberty of the plaintiff.

1. RESTRAINT MUST BE TOTAL OR COMPLETE. One of the essential requirements for the tort of false imprisonment is that there should be total restraint on the plaintiff’s liberty. If he is free to go to any one or more direction, it cannot be said to be total restraint. BIRD V. JONES The defendants wrongfully enclosed part of the public footway on a river bridge and made seating arrangement for spectators of a boat-race on the river charging admission fee for entry into the enclosure. The plaintiff insisted on passing along this part of the footway and climbed over the fence of the enclosure without paying the charges. Defendants refused to allow him to go forward and asked him to go back and cross the other side of the bridge if he so wished, but the plaintiff declined to do so and remained in the enclosure for about half an hour. When sued for false imprisonment the defendants were held not to have committed that tort because the restraint was only partial and not total as the plaintiff could go across the river form the other side. HERRING V. BOYLE The plaintiff, a boy of 10 years was a pupil in the defendant’s school and his mother wanted to take the boy home for a few days to which the defendant refused and told her that the boy will not be allowed to go with her unless the school dues were paid. When the defendant was sued for false imprisonment, it was held that there was no imprisonment of the plaintiff as no restraint was placed on his will. HERD V. WEARDALE STEEL, COAL & COKE CO. The plaintiff, a mine-worker descended a coal mine at 9:30 A.m for work. He had a right to be lifted to the surface after his shift at 4.P.M. While working inside the mine, he was asked to do a certain work which he refused to do and at 11.A.M made a request to be brought to the surface but his employer declined to allow him to use the lift until 4.P.M although it was available to carry workers to the surface since 1:30.P.M. Thus he was detained inside the mine against his will for a short time for which he sued the dependents.

It was held that there was no false imprisonment since by the contract of service the plaintiff had agreed to abide by the conditions on which he could go out of the mine. MEE V. CRUTSHANK The plaintiff after his release from jail was detained in a cell by the jail guard for interrogation, for a short time. The detention of a prisoner after release for however short period was held to be false imprisonment and the defendants were held liable. 2. CONFINEMENT SHOULD BE INTENTIONAL A person may be confined by putting physical barriers around him or by locking him/her in a room or by restricting his liberty by use of force against him or by threatening him not to move from a certain place. The confinement of the person should be intentional. If there is absence of intention on the part of the defendant, the confinement will not be actionable as a false imprisonment. KNOWLEDGE OF RESTRAINT TO THE PLAINTIFF. The Tort of false imprisonment may be committed even if the plaintiff did not know that he was detained. MEERING V. GRAHAME – WHITE AVIATION CO. LTD In this case the plaintiff being suspected of having committed the theft of a KEG OF VARNISH paint from the defendants company while at work. He was asked by the security guards to go with them to the company’s office and wait. He was again said to wait in waiting room along with the security guards. In meanwhile the police came and found nothing in his possession therefore allowed. Later in an action for false imprisonment the lower court held that it was not false imprisonment, but the upper court held that it was false imprisonment because the plaintiff was under police watch was no longer a free man. The court further held that a person can be imprisoned without his knowledge, when he asleep, state of drunkenness, unconscious, lunatic. 3. WITHOUT ANY RESONABLE JUSTIFICATION. The detention or wrongful confinement of a person in order to constitute the tort of false imprisonment should be unlawful or without any reasonable justification. Where there is some justification for detaining a person, it will not be actionable as false imprisonment.

KUNDAN LAL V. DR. DES RAJ The plaintiff a surety applied for a bail bond. The Superintendent of Police refused the bail bond and ordered re-arrest of the plaintiff and consequently, the plaintiff was re-arrested by the subinspector of police. The power to refuse bail and order re-arrest by is to be exercised by a Magistrate under the Code of Criminal Procedure. The Superintendent of police therefore had no such power hence the detention and arrest of the plaintiff was unlawful and without any justification. Remedies. 1. Self help 2. Writ of Habeas Corpus under Art 32 before Supreme court and Under Art 226 before High court. 3. Action for damages. Defences:1. Any breach of peace or any disturbance of Public tranquility from the plaintiff, he may be kept under preventive detention by public authorities. 2. A parent or a guardian in exercise of their control and supervision. 3. Where a Plaintiff is a lunatic, insane or is suffering from some serious mental disease. 4. Where the plaintiff was assisting police. 5. Detention under judicial authority. 6. Plaintiff’s own consent.

(b). Assault. Assault is an attempt or threat to commit a battery and may therefore, be described as an inchoate battery. It is one form of trespass to person. A threat to commit a battery is assault. It is both a tort and also an offence. Section 351 of Indian Penal Code defines as:“whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation, is about to use criminal force against that person, is said to commit the offence of assault.

The punishment for the offence of assault is imprisonment of either description for a term which may extend to three months, or fine which may extend to Rs.500, or with both. Assault may be in general words defined as “the unlawful laying of hands on another or an attempt to do corporal hurt to another, coupled with ability and intention to do the act”. Dr. Winfield has defined assault as an act of the defendant which causes a reasonable apprehension in the mind of the plaintiff of the intention of infliction of a battery on him by the defendant. The essence of tort of assault lies in the fact that a reasonable apprehension should have been caused in the mind of the plaintiff that defendant is going to use of force against him. Thus it is the apprehension by the plaintiff which is material and not the intention of the defendant. The court would see whether the gesture or bodily movement of the defendant sufficiently indicated his attention to use force against the plaintiff and if so, it will be a cause for assault. INGREDIENTS OF ASSAULT. The plaintiff has to prove, 1. There was some gesture or bodily movement which constituted threat, hostility or likelihood of use of force. 2. It should create reasonable apprehension in the mind of the plaintiff that the defendant is going to use unlawful force against him; and 3. There must be ostensible ability on the part of defendant to carry out the threat or capability of using force against the plaintiff. Assault is a form of trespass to person and trespass, whether to person or land, being actionable per se, no harm or actual damage is necessary to have been caused to the plaintiff. A mere physical touch or contact with the body of the plaintiff or even his clothing will be sufficient to constitute ‘force’ in the context of tort of assault. TUBERVILLE V. SAVAGE The defendant placing his hand upon his sword said to the plaintiff, “if it was not assize time, I would not have taken such words from you”. This was not held to be actionable as an assault, since the words used by the defendant clearly indicated his inability to use force against the plaintiff. COLE V. TURNER

The least touching of another is battery. If two or more persons meet in a narrow passage and without any violence or design to harm, the one touches the other gently, it will neither be an assault nor a battery. But if any of them uses violence against the other, to force his way in a rude manner, it will be a battery or any struggle about the passage which may cause harm or injury would be a battery. STEPHENS V. MYERS The plaintiff was chairing the municipal meeting. Due to arrogance of the defendant in the meeting , a motion against him was carried by a majority that he should be turned out. Upon this, the defendant got enraged and moving towards the Chairman with his fist clinched said that he would rather pull the Chairman out of the chair. He was however, stopped by the warden who was sitting by the side of the Chairman. The Jury returned a verdict of guilty for assault and fined the defendant to pay one shilling to the Chairman as damages. It was held the circumstances indicated the intention of the defendant of carrying the threat into effect and therefore it was amounted to assault. READ V. COKER The defendant workers gathered around the plaintiff, rolling up their sleeves and threatening to break his neck if he did not immediately leave the place. It was held that assault as the words characterized the aggressiveness of the defendants. BASISETTI VENKATA SURYARAO V. MUTHAYYA (AIR 1965 ANDH 382) A farmer of a village was in arrears of land revenue. The village Munsif demanded payment from the farmer at his house on the last day for the collection of revenue for that particular year. The farmer said he was not able to pay because his wife had locked doors of his house. The Munsif insisted spot payment and told that if he fails to pay. He would call a goldsmith and remove his gold earrings. But meanwhile a villager nearby paid the fee. Later the farmer filed a case on Munsif for assault. The court held that Munsif did nothing to cause threat of force. PRATAP DAJI V. BB. & CL RLY (1875) BOM 52. In this a passenger was travelling in a railway without tickets. When the wanted to take the ticket with extra fine but that was not heeded.

The ticket checker told him to get down in the next station but the passenger refused to leave and the traveller was forced to get down in the next station. The traveller sued the railway department but it was held it was not an assault because he was without ticket passenger OR “X’ purchased a ticket for a circus show and entered the gallery to take his seat. He was forcibly turned out by the manager under the mistaken belief that he had no ticket for the show. Can X claim damages from the manager of the circus company. Solution:- Yes Mr. X can claim damages from the manager of the circus company. The reasons are, The above mentioned problem is related to the topic ‘Trespass to Land’. Trespass means any interference with the possession of land without lawful justification will constitute a tort of trespass to land. Trespass could be committed in 2 ways. 1. Entering into another’s place or 2. By doing the same through some material tangible object such as throwing stone on another person’s land etc. Section 441 of IPC defines Criminal Trespass. To constitute Trespass the following essentials must be there, 1. Plaintiff must be in exclusive possession of the land. 2. Defendant’s entry into that land or remaining there for however short time; and 3. Such entry should be without any lawful justification. So in the above mentioned problem X has no entered into the circus unlawfully, but he has purchased the ticket and entered into circus. Hence, X is having defence that he entered with leave and Licence. Hence X can claim the damages from the Manager. Q.No.5. (a) Explain the composition and jurisdiction of District Consumer Forum. Introduction :-

This Act consists of 4 chapters divided into 31 sections Chapter – I :- Preliminary:- Section 1- 3 Chapter - 2 :- Consumer Protection Councils:- section 4-8 Chapter –3 :- Consumer Disputes Redressal Agencies:- Section 9-27 Chapter – 4 :- Miscellaneous:- section 28-31 Objects of the Act a. The right to be protected against marketing of good which are dangerous to life and property. b. The right to be informed about the quality, quantity, potency, purity, standard and price of goods in order to protect the consumer against unfair trade practices. c. The right to be assured wherever possible, access to goods at competitive prices. d. The right to be assured that consumer’s interest will receive due consideration at the appropriate forums e. The right to seek relief and redressal against unscrupulous exploitation of consumers; f. The right to consumer education. Section 2:Around 21 terms are defined under section 2 which is needed for understanding in this Act. SECTION 10:- COMPOSITION OF THE DISTRICT FORUM 1. Each district forum shall consist of a. District Judge, who shall be its President. b. Two other members one shall be a women who shall have following qualification, i. Be not less than 35 years of age. ii. Possess a bachelor’s degree from the recognized university. iii. Be person of ability, integrity and standing and have adequate knowledge and experience of at least 10 years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or admistration. Provided that person shall be disqualified for appointment as members 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. 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. (1-A) Every appointment shall be made by the state Government on the recommendation of Selection committee consisting of the following namely i. ii. iii.

The president of the state commission. Secretary, law department of the state. Secretary-in-charge of the Department dealing with consumer affairs in the state.

Members shall hold the office for the term of 5 years or up to the age of 65 yrs. Section 11:- JURISDICTION OF THE DISTRICT FORUM. 1. 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 20,00,000/-. 2. A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction.a. The opposite party at the time of institution of the complaint, actually and voluntarily resides or carries on business or has a branch office personally works for gain. b. The opposite party at the time of institution of the complaint, where the district forum has given the permission though the person do not reside. c. The cause of action wholly or in part arises. Or Explain strict liability in Motor Vehicles Act. INTRODUCTION Section 140:- LIABILITY TO PAY COMPENSATION IN CERTAIN CASES ON THE PRINCIPLE OF NO FAULT. 1. 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. 2. The amount payable is in case of death of any person (50,000/-) and in case of permanent disability (25,000/-) is fixed sum. 3. The claimant need not prove any wrongful act, neglect or default of the owner of the vehicle in case of death or permanent disability of the claimant. 4. A claim for compensation shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement recoverable in respect of such death or permanent disablement be reduced.

5. Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law time being in force. Section 141:- PROVISION AS TO OTHER RIGHT TO CLAIM COMPESNATION FOR DEATH OR PERMANENT DISABLEMENT :1. 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 , except the right to claim under the scheme to section 163A (such other right hereafter 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 of any other law for the time being in force. 2. A claim for compensation under section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible. 3. The person liable to pay compensation is also liable to pay compensation in accordance with the right of principle of fault, the person so liable shall pay the first-mentioned compensation and – a. If the amount of the first mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first mentioned compensation) only so much 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 first-mentioned compensation is equal to or more than the amount of the second-mentioned compensation, he shall not be liable to pay the second mentioned compensation. Section 142:- Permanent Disablement:It means which has resulted from an accident, any injury or injuries involvinga. 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 powers of any member or joint; or c. Permanent disfiguration of the head or face.

(b). Define consumer. Who is a consumer? Section 2(1) (2):1.

Buyer of goods for a consideration which has been paid or promised to be paid or partly paid and partly promised to be paid.

2. Buyer of goods with approval of the buyer. 3. The user of the goods with approval of the buyer. 4. The person who heirs or avails of any services for a consideration under any system of deferred payment. 5. The beneficiary of such services with the approval of the hirer of services. The term consumer has been interpreted by Forums in different ways. However the following have been held to be consumers under the consumer protection law:1. 2. 3. 4. 5. 6. 7. 8.

A patient in relation to his doctor of a hospital. Prospective allottee of a plot of land or flat. Telephone subscriber. A person using or consuming electricity. Nominee of insurance policy. Customer of a tailor. A writer in relation to his publisher. A person who has got himself registered for supply of LPG gas cylinder will also be a consumer for the purpose of the purpose of the Act though, in fact, he is a prospective consumer. 9. A person who has purchased a car, television set, fridge, scooter for his own use will be a consumer under the consumer protection Act. K. P.Leela Advocate V. Aneja Finacial consultancy services. It was held that advocate will provide services. Therefore in case of deficiency in service, the complainant is entitled to maintain the complaint in the capacity of consumer.

➢ HIGH WAY USERS NOT CONSUMERS. ➢ AGENTS ARE NOT CONSUMERS. ➢ BORROWING LOAN FROM BANK DOES NOT MAKE THE BORROWER A CUSTOMER OF THE BANK FOR THE PURPOSE OF CONSUMER PROTECTION ACT. ➢ BANK CANNOT BE A CONSUMER. ➢ BOOK SELLER IS NOT A CONSUMER HENCE HIS COMPLAINT IS BOUND TO BE DISMISSED. ➢ STUDENT IS NOT A CONSUMER FOR UNIVERISITY BOARD. OR Application for compensation under Motor Vehicles Act. Section 166:- APPLICATION FOR COMPENSATION:-

1. An application for compensation arising out of an accident of the nature specified in subsection of section 165 may be madea. By the person who has sustained the injury; or b. By the owner of the property; or c. Where death has resulted from the accident, by all or any of the legal representatives of the deceased; or d. By any agent duly authorized by the person injured or all or any of the legal representatives of the deceased as the case may be. If the legal representative of the deceased have not the joined the application, the application shall be made on behalf of the benefit of the legal representatives of the deceased. 2. Every application under sub-section (1) shall be made, at the option of the claimant, either to the claims Tribunal having jurisdiction over the area in which the accident occurred or to the claims Tribunal within the local limits of whose jurisdiction the claimant resided or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed. 3. The Claims Tribunal shall treat any report of accident forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.

……………………………XXXXXXXXXXXXXXXXXXXXX…………………………. PREPARED BY JAYALAKSHMI.V ASST. PROF AL-AMEEN COLLEGE OF LAW