Law of Torts, Motor Accident Claims and Consumer Protection Notes | B.A. LL.B. (Five Year Course) Semester 5 | Mumbai University | munotes

In one line

A tort is a civil wrong, other than a breach of contract or of trust, for which the person wronged can sue and be awarded damages fixed by the court.

In the wording a student can write in an exam: a tort is a civil wrong arising from the breach of a duty fixed by law itself, owed to persons generally rather than to one person under an agreement, the remedy for which is a common law action for unliquidated damages, and which is not exclusively the breach of a contract, of a trust or of some other merely equitable obligation.

The word, and the two words it is not

Tort comes from the Latin tortum, which means twisted or crooked, through the French tort, meaning a wrong. The idea in the word is conduct that is not straight, and the Latin equivalent used in the old books is delictum, a wrong. The English word "wrong" is the plain translation, and if you read "tort" as "a civil wrong of a particular kind" every sentence in this book will make sense.

Two words have to be separated from it at once, because a student who confuses them will get every distinction question wrong.

A crime is a wrong against the State. The State prosecutes, the proceeding is criminal, and the result is punishment. A tort is a wrong against a private person. That person sues, the proceeding is civil, and the result is compensation. The same act can be both, and chapter [Tort Distinguished from Crime] works that out.

A breach of contract is a failure to do what you promised. The duty came from the agreement, so it is owed only to the other party to it. In tort the duty comes from the law and is owed to everybody. Chapter [Tort Distinguished from Breach of Contract and Other Wrongs] works that out.

The one definition that is law in India

Most books give you three definitions by three English writers and no statute. India has a statute. Section 2(m) of the Limitation Act 1963 provides that "tort" means a civil wrong which is not exclusively the breach of a contract or the breach of a trust.

That definition is binding for the purposes of the Limitation Act, which is the Act that tells a court whether an action in tort is too late. It is not a code of tort law and it does not pretend to be one. But it settles two things: that a tort is a civil wrong, and that it is defined by exclusion, that is, by saying what it is not.

Note the word "exclusively". A single set of facts can be both a breach of contract and a tort, and the definition is careful to leave room for that. A surgeon who operates carelessly breaks the contract of treatment and also commits the tort of negligence. Only a wrong that is nothing but a breach of contract falls outside.

In one line

Tortious liability is liability imposed by the law itself, owed to everybody, and enforced by a civil suit in which the court fixes the compensation.

In the wording a student can write in an exam: the nature of tortious liability is that it arises from the breach of a duty primarily fixed by law and not by agreement, that the duty is owed to persons generally and not to a determinate person, that the right it protects is a right in rem, and that its remedy is a civil action for unliquidated damages; its scope extends to every interest the law protects, in person, property, reputation and economic relations, and it is not closed.

Why this question is asked at all

A student who can define a tort may still not know what kind of animal it is. Is it a branch of criminal law that happens to pay money? Is it contract without a signature? Is it a general principle of "do no harm"? Each of those is a real misunderstanding, and each produces a wrong answer to a problem question.

The Supreme Court answered the question directly in Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, and the answer is worth having in the exact terms the Court used, because they are the terms MU's topic uses.

Facts. Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1, decided on 4 May 1994. In 1954 the State of Saurashtra, now part of Gujarat, planned to reclaim land from the sea by building a reclamation bund. The bund was built in such a way that the plaintiff company's salt works were flooded and destroyed. Negligence on the part of the State's officers was found by the High Court and that finding became final. The suit was nevertheless dismissed as barred by limitation, and the appeal turned on which article of the Limitation Act applied to a claim founded on negligence.

Held. The Court held that injury and damage are the two basic ingredients of a tort; that what makes liability tortious is that the duty broken was fixed primarily by the law, while in contract the duty is fixed by the parties themselves; that in tort the duty is owed to persons generally while in contract it is owed to a specific person; and that an action in tort is a claim for pecuniary compensation for the invasion of a legally protected interest. It went on to hold that the law of torts is a developing law whose frontiers are incapable of being strictly barricaded, and that since duty is the primary yardstick of liability, its ambit keeps widening on the touchstone of fairness and the practicality of the situation. On limitation it held that time could run from the wrongful act, or from the damage, or, where a claim had been lodged and the damage ascertained, from the rejection of the claim; the rejection here was never communicated, so the suit was in time and the decree was granted.

In one line

The law of torts exists to shift a loss from the person it fell on to the person who ought to bear it, and to make people careful in advance.

In the wording a student can write in an exam: the objects of the law of torts are to compensate the person wronged, to deter conduct that causes harm, to vindicate rights that have been infringed although no loss followed, to distribute a loss over those best able to bear it, and to appease a wronged person so that private vengeance is replaced by an action at law.

Why the question is worth asking

Every rule you will learn in this subject is a choice, and the choices only make sense if you know what the law is trying to do. Why is a master liable for his servant's wrong when the master did nothing? Why is a factory liable for an escape of gas although it took every precaution? Why is a person who lost no money still allowed to sue? None of those can be answered from the definition of a tort. All of them can be answered from its objects.

The Supreme Court put the object in one sentence in Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1, quoting the classical statement that the law of torts exists to prevent people from hurting one another, whether in respect of their property, their persons, their reputations or anything else that is theirs.

The five objects

1. Compensation. The primary object. A person who has been injured is put, so far as money can do it, in the position he would have been in had the wrong not happened. This is the principle of restitutio in integrum, Latin for restoration to the original position, and chapter [Judicial Remedies: Damages] works out how a court applies it.

2. Deterrence. An award of damages is a price attached to careless or wrongful conduct, and the price is meant to make people take care before the event. The Supreme Court made deterrence explicit in M.C. Mehta v. Union of India, AIR 1987 SC 1086, when it held that the compensation payable by a hazardous enterprise must be related to the magnitude and capacity of the enterprise, precisely so that the award has a deterrent effect.

3. Vindication of rights. Some torts are actionable without proof of any loss. The object there is not to compensate but to declare that a right exists and has been broken. That is why a man who is wrongly turned away from a polling booth, or a legislator who is unlawfully detained for four days and then released, is given a sum of money although he cannot point to a rupee of loss.

In one line

The argument is whether the law protects a general principle that all harm done without lawful excuse is a tort, or only a fixed list of named wrongs.

In the wording a student can write in an exam: on Winfield's wider theory there is a law of tort, so that every wrongful interference with another's interests is a tort unless there is lawful justification, and the category is open; on Salmond's narrower theory there is only a law of torts, a closed set of specific wrongs each with its own name and ingredients, and conduct that fits none of them gives no action however unreasonable it may be.

The vocabulary first

Winfield's theory is called the wider theory, the general theory, or the law of tort.

Salmond's theory is called the narrower theory, the specific theory, or the pigeon-hole theory. A pigeon-hole is one of the small open compartments in an old writing desk. The image is that the law provides a set of labelled compartments, battery, nuisance, defamation and the rest, and a plaintiff must be able to put his complaint into one of them.

Winfield's case

Winfield argued that all injuries done to another person are torts unless there is some justification recognised by law. On this view the law of torts is a body of principle, and a court faced with a new kind of harm may hold it actionable without waiting for a legislature or for a precedent exactly in point.

His evidence was historical. Every named tort was once new. Deceit, negligence as an independent tort, nervous shock and the wrong of inducing a breach of contract each began as a case in which a court gave a remedy for a harm not previously recognised. If the list had really been closed at any point in the past, none of them could exist now.

Salmond's case

Salmond argued that there is no general principle of liability at all. The law provides a number of specific torts, and outside them there is no liability however unreasonable the defendant's conduct. He accepted that the courts may create new torts, but insisted that until they do, a plaintiff must bring his case within an existing head.

His evidence was practical. A court asked whether conduct is a tort does not ask "was this unjustified?"; it asks "is this a nuisance, or a trespass, or negligence?" A judgment that names no tort at all is not how the subject is written, and a defendant is entitled to know what wrong he is said to have committed.

The two theories tested against real cases

The honest answer to the examination question is that the difference is smaller than it looks, and this is where marks are won.

In one line

India has no code of tort law: the subject came here as English common law, is applied only so far as it suits Indian conditions, and has been changed by Indian courts and by Indian statutes.

In the wording a student can write in an exam: the law of torts in India is uncodified and is derived from the English common law, which was introduced through the Presidency and Provincial courts and applied under the rule of justice, equity and good conscience; article 372 of the Constitution continues the law in force before its commencement until altered; English decisions are of persuasive and not of binding authority, and are followed only so far as they suit Indian conditions; and Indian courts and Parliament have both departed from English law, most notably by the rule of absolute liability and by the statutory no-fault schemes.

How English law came here

The Presidency towns. The Charters that set up the Mayor's Courts and later the Supreme Courts at Calcutta, Madras and Bombay required them to apply English law. English tort law therefore came in as the ordinary law of those courts.

The mofussil. Outside the Presidency towns, the courts were told to decide according to justice, equity and good conscience where no specific rule applied. That phrase became, in practice, a direction to apply English common law where it seemed reasonable. That is how the rules of trespass, nuisance, defamation and negligence, none of which any Indian legislature had enacted, became the law in an Indian district court.

After the Constitution. Article 372(1) of the Constitution provides that all the law in force in the territory of India immediately before its commencement shall continue in force until altered, repealed or amended by a competent legislature or other competent authority. The uncodified law of torts is law in force within that article, and that is its formal foundation today.

Why it was never codified

Every neighbouring subject was codified in the nineteenth century: contract in 1872, trusts in 1882, transfer of property in 1882, the penal law in 1860. Torts was not, and the reason is that a code needs a settled body of rules to codify. The English law of torts was still growing when the Indian codes were written, and the draftsmen preferred to leave it to the courts.

The consequence is the one you are living with. There is no Indian Torts Act to open. The rules are in decisions, and a large number of the leading decisions are English, because that is where the rules were made.

But India is not bound by English law

This is the paragraph that separates a good answer from an average one, and the authority for it is a judgment of five judges.

In one line

Some torts need a guilty state of mind, some need only carelessness, and some need neither.

In the wording a student can write in an exam: the mental element in tort varies with the tort: intention is required for the trespasses and for deceit, negligence in the sense of want of reasonable care is required for the tort of negligence, malice in fact is required for malicious prosecution and defeats certain defences in defamation and nuisance, and a group of liabilities, strict, absolute and statutory, requires no mental element at all.

The five words, defined

Intention means that the defendant meant to bring about the consequence, or knew it was substantially certain to follow from what he did. A man who throws a stone at a window intends to break it.

Motive means the reason why the defendant acted: the object he hoped to achieve. A man may break a window to burgle a house, to protest, or to rescue a child.

Malice in law means a wrongful act done intentionally, without just cause or excuse. It carries no suggestion of spite. It is simply the legal way of saying that the act was deliberate and unjustified.

Malice in fact, also called express malice or actual malice, means spite or ill will: a bad motive.

Negligence in this context means failure to take the care that a reasonable person would take. It is a state of conduct rather than a state of mind, which is why the tort of negligence is judged objectively.

The rule about motive, and its exceptions

The general rule is that motive is irrelevant in tort. A lawful act does not become unlawful because it was done from a bad motive, and an unlawful act does not become lawful because it was done from a good one. If a landowner is entitled to drain water from his own land, he may do so although his purpose is to spite his neighbour.

The reason is practical. Rights would become unusable if every exercise of them could be reopened by an inquiry into the owner's feelings, and courts are poorly placed to conduct that inquiry.

There are four settled exceptions, and every one of them is a chapter of its own later in the book.

1. Malicious prosecution. Malice is an ingredient of the tort itself: the plaintiff must prove that the prosecution was set in motion maliciously and without reasonable and probable cause. Chapter [Malicious Prosecution] works it out.

2. Defamation on an occasion of qualified privilege. The privilege is lost if the plaintiff proves malice in fact. Chapter [Defences to Defamation] works it out.

3. Nuisance. Where the defendant's use of his land is otherwise reasonable, a malicious purpose may make it unreasonable and therefore actionable. Chapter [Private Nuisance] works it out.

In one line

A crime is a wrong against the whole community, prosecuted by the State and punished; a tort is a wrong against one person, sued on by that person and compensated.

In the wording a student can write in an exam: a tort is a private wrong, the proceeding is a civil suit brought by the person wronged in his own name, the object is compensation, the standard of proof is the balance of probabilities and the parties may compromise; a crime is a public wrong, the proceeding is a prosecution brought in the name of the State, the object is punishment, the standard of proof is beyond reasonable doubt and the offence may be compromised only if it is compoundable.

Why the law divides wrongs this way

The same act can hurt one person and threaten everybody. When Ravi is beaten in the street, Ravi suffers a private loss and the public loses its confidence that the streets are safe. The law answers both, but not in the same proceeding, because the two answers pull in different directions: compensation asks how much Ravi lost, punishment asks how bad the beating was.

Keeping them separate lets each do its own work. Ravi can settle his claim for money without the State losing its power to prosecute, and the State can prosecute without Ravi being obliged to fund the case.

The distinctions in full

The wrongs that are both

This is where the marks are, because a student who can name the overlapping wrongs and give the current section numbers has answered the question that MU actually sets.

Assault and battery are torts and are also offences: section 131 of the Bharatiya Nyaya Sanhita 2023 punishes assault or criminal force otherwise than on grave and sudden provocation.

False imprisonment is a tort, and wrongful confinement is an offence under section 127 of the Sanhita.

In one line

In contract you sue because the defendant broke a promise he made to you; in tort you sue because he broke a duty the law imposed on him towards everybody.

In the wording a student can write in an exam: in a breach of contract the duty is fixed by the parties themselves and is owed to a determinate person, the right is a right in personam, the damages are liquidated or are assessed on the contractual measure under section 73 of the Indian Contract Act 1872, and privity limits who may sue; in a tort the duty is fixed by the law, is owed to persons generally, the right is a right in rem, the damages are unliquidated, and no privity is required.

Why the distinction decides real cases

Two things turn on it, and both come up in practice.

Who can sue. A contract binds the parties to it. A passenger injured by a defective bus can sue the operator in contract because he bought a ticket; his friend, who was given a free lift, cannot. Both can sue in tort, because the duty of care is owed to everybody on the road.

How much is recovered, and by when. The measure of damages in contract is set by section 73 of the Indian Contract Act 1872, which allows compensation for loss naturally arising in the usual course of things from the breach or which the parties knew was likely to result, and expressly excludes remote and indirect loss. The measure in tort is not the same, and the period of limitation is usually different too.

The distinction in full

Where the same facts give both

A single set of facts often supports an action in contract and an action in tort, and the plaintiff may generally choose. Section 2(m) of the Limitation Act 1963 anticipates this by defining a tort as a civil wrong that is not exclusively a breach of contract.

The surgeon. A patient who pays a surgeon has a contract, and the surgeon also owes the ordinary duty of care that every professional owes. Careless surgery is both a breach of contract and the tort of negligence. In India there is now a third route: the patient may go to a Consumer Commission, because section 2 of the Consumer Protection Act 2019 makes him a consumer of a service and gives him a remedy for deficiency in it.

In one line

Anybody whose legal right has been infringed may sue, and the exceptions concern people who need somebody to sue for them or who are barred by their status.

In the wording a student can write in an exam: the general rule is that any person whose legal right has been violated may bring an action in tort; the law makes special provision for a minor, an unborn child, a person of unsound mind, a married woman, a corporation, an insolvent, a convict, an alien enemy, a foreign State and the State itself, and in India a foreign national may also enforce the right to life under article 21.

The general rule

A plaintiff must show that a legal right vested in him has been infringed. He need not show loss, because some torts are actionable without it, and he need not show a relationship with the defendant, because the duty in tort is owed to persons generally.

Two consequences follow. A person who suffers loss without any right of his being infringed cannot sue, which is damnum sine injuria. And a person whose right is infringed may sue even though somebody else suffered the real loss, which is why the owner of goods, and not the person using them, is the proper plaintiff in conversion.

The special plaintiffs

A minor. A minor may sue for a tort committed against him, but the suit is brought through a next friend, that is, an adult who conducts the litigation on his behalf. His age does not reduce the duty owed to him, and in negligence it may raise it, because what is reasonable care towards a child is more than what is reasonable towards an adult.

An unborn child. A child injured in the womb may sue after birth for injuries caused before it, and a child born after its father's death is within the class for whom a claim under the Fatal Accidents Act 1855 may be brought.

A person of unsound mind. He may sue through a next friend in the same way as a minor.

A married woman. She may sue in her own name for a tort committed against her. The old English rule that required her husband to be joined never applied in India, and the position now is that a wife may sue and be sued independently.

A corporation. A company may sue for torts affecting its property, its business and its reputation. It may sue in defamation, because a false statement can injure the trading reputation of a company as it can a person's, but it cannot sue for wrongs that can only be committed against a natural person, such as assault or false imprisonment.

In one line

At common law a death gave the family no action at all, and the Fatal Accidents Act 1855 is the statute that gave them one.

In the wording a student can write in an exam: the maxim actio personalis moritur cum persona means that a personal action dies with the person, so that at common law neither the estate of a person killed nor his family could sue the wrongdoer; the Fatal Accidents Act 1855 altered this in India by giving the wife, husband, parent and child of a person whose death was caused by a wrongful act, neglect or default an action for the loss resulting to them from the death, to be brought by the executor, administrator or representative of the deceased, and by allowing a claim for pecuniary loss to the estate to be added to it.

The maxim, and why it was intolerable

Actio personalis moritur cum persona is Latin for "a personal action dies with the person". It worked in both directions. If the injured person died, his claim died with him. If the wrongdoer died, the claim against him died too.

Applied to a death caused by a wrong, the rule produced an absurdity that Victorian judges themselves noticed: it was cheaper to kill a man than to injure him, because an injured plaintiff could sue for years of loss while a dead one could not sue at all, and his widow had no claim of her own because the wrong had been done to him.

The preamble to the Fatal Accidents Act 1855 says exactly this. It recites that no action is maintainable against a person who by his wrongful act, neglect or default has caused the death of another, and that it is often right and expedient that the wrongdoer should be answerable in damages for the injury so caused.

The Act, section by section

Section 1. Short title and extent. The Act is called the Fatal Accidents Act 1855 and extends to the whole of India. This section was inserted in 1951; the original section 1 became section 1A.

Section 1A. The action for the family. Where the death of a person is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, the person who would have been liable is liable to an action notwithstanding the death, and although the death was caused in circumstances amounting in law to felony or other crime.

Every such action is for the benefit of the wife, husband, parent and child of the deceased, and is to be brought by and in the name of the executor, administrator or representative of the deceased. The court may give such damages as it thinks proportioned to the loss resulting from the death to the parties for whose benefit the action is brought, and the amount recovered, after deducting costs, is divided among them in the shares the court directs.

In one line

Some defendants cannot be sued at all, some cannot be sued without permission, and some can be sued only for certain acts.

In the wording a student can write in an exam: an action in tort does not lie against a foreign sovereign or a diplomatic agent except with consent, against the President or a Governor for acts done in the exercise of the powers and duties of the office, or against a judge for anything done in the discharge of judicial duty; the State is liable for the torts of its servants to the extent settled by article 300 of the Constitution; a minor is liable for his own torts but a parent is not liable merely as a parent; and a corporation is liable for torts committed within the scope of its objects and by its servants in the course of employment.

Foreign sovereigns and diplomatic agents

A foreign State, its ruler, and its diplomatic representatives cannot be sued in Indian courts without consent. For a foreign State the requirement is statutory: section 86 of the Code of Civil Procedure 1908 requires the consent of the Central Government before a foreign State may be sued. For diplomatic agents the immunity comes from the international law of diplomatic relations, which India has given effect to by statute.

The reason is not that they can do no wrong. It is that the courts of one State do not sit in judgment on another, and a diplomat must be able to do his work without being answerable in the courts of the country he is posted to.

The President and the Governors

Article 361 of the Constitution provides that the President and the Governor of a State are not answerable to any court for the exercise and performance of the powers and duties of their office, or for any act done or purporting to be done in that exercise and performance. No criminal proceedings may be instituted against them during their term of office, and no civil proceedings in which relief is claimed against them personally may be instituted during the term without two months' notice.

The protection is of the office and of the period. It does not protect the State itself from liability for the acts of its servants, and it does not last beyond the term for acts outside the office.

Judges

Judicial immunity exists so that a judge decides according to law and not according to fear of being sued by the loser. It is not a personal privilege.

The Act that used to be cited is gone. The Judicial Officers Protection Act 1850 protected a judicial officer for acts done in the discharge of judicial duty. It was repealed by the Repealing and Amending Act 2023, Act 37 of 2023, which received assent on 17 December 2023 and whose First Schedule lists it in its first row.

In one line

Damnum sine injuria means loss without the violation of any legal right, and it gives no action however large the loss is.

In the wording a student can write in an exam: damnum sine injuria means damage without legal injury; the maxim expresses the rule that harm alone gives no cause of action, and that a plaintiff must show the infringement of a legal right, so that loss caused by the lawful exercise of a right, by competition, or by an act the law permits is not actionable at all.

The two Latin words

Damnum means damage, harm or loss in the ordinary sense: money lost, custom lost, feelings hurt, opportunities missed.

Injuria does not mean injury in the ordinary sense. It means the violation of a legal right. This is the single most important vocabulary point in Module I, because the two maxims are unintelligible until it is grasped.

So damnum sine injuria is loss without the violation of a right, and injuria sine damno, the subject of the next chapter, is the violation of a right without loss.

Why the law is like this

If every loss gave an action, ordinary life would stop. Opening a shop takes custom from the shop next door. Applying for a job takes it from another candidate. Building on your own land takes light and view from your neighbour. Each is a loss and none is a wrong, because the person who caused it was doing something he was entitled to do.

The law therefore asks a different question from "did the plaintiff suffer?" It asks "was any right of the plaintiff infringed?" Where the answer is no, the loss lies where it falls. This is also the strongest practical limit on Winfield's theory, examined in chapter [Law of Tort or Law of Torts], because it shows how much harm the law leaves unremedied.

The leading case

Facts. The Gloucester Grammar School case, (1410) YB 11 Hen IV, fo. 47, pl. 21, 23, as set out by the Karnataka High Court in H.R. Krishnamurthy v. State of Karnataka, decided on 13 April 2018. The defendant, a schoolmaster, set up a rival school next door to the plaintiff's school. Boys left the plaintiff's school for the defendant's, and the plaintiff's fees fell sharply.

Held. No action could be maintained, either for an injunction or for damages. Competition is no ground of action whatever damage it may cause, provided nobody's legal right is infringed.

Why it matters here. It is the oldest and plainest statement of the rule, and it fixes the point that the size of the loss is irrelevant. The plaintiff's income fell by half and he still had no case.

In one line

Injuria sine damno means the violation of a legal right without any loss, and it does give an action.

In the wording a student can write in an exam: injuria sine damno means legal injury without damage; where a legal right has been violated the law presumes damage, so the wrong is actionable without proof of any loss, and the plaintiff succeeds even though he is not out of pocket; the damages may be nominal, but where the violation is serious an Indian court may award a substantial sum.

The torts that are actionable per se

Actionable per se is Latin for actionable in itself, and it describes a tort in which the plaintiff need not prove damage at all. The main ones are:

Trespass to land, so that a person who walks across another's field without permission is liable although he damages nothing.

Trespass to the person, that is battery, assault and false imprisonment, so that an unlawful detention is actionable even if the person detained was comfortable throughout.

Trespass to goods, so that a person who moves another's goods is liable although they are unharmed.

Libel, and those four kinds of slander which are actionable without proof of special damage.

In each of these the law presumes damage because the right protected is one whose violation is a harm in itself. Chapters [Trespass to Land], [Trespass to the Person], [Trespass to Goods] and [Libel and Slander] work each of them out.

The classical case

Facts. Ashby v. White, decided in 1703, as described by the Supreme Court of India in Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787. A qualified elector was wrongfully prevented from voting by the returning officer. The candidate he wished to vote for was elected in any event, so the refusal cost him nothing.

Held. The maxim ubi jus ibi remedium was applied in his favour and the claim for damages was decreed. The Supreme Court of India describes the decision as an award of damages to an elector wrongfully prevented from voting.

Why it matters here. It fixes the rule that the violation of a right is itself the injury. It also shows why the rule is necessary: if the elector had no remedy, the returning officer could turn away as many electors as he liked, provided he was careful to choose those whose candidate would win anyway.

The Indian case

Facts. Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, decided on 22 November 1985. Bhim Singh, a sitting member of the Jammu and Kashmir Legislative Assembly, was arrested at three in the morning on 10 September 1985 while travelling to attend a session of the Assembly. He was held from the tenth to the fourteenth. He was not produced before the Executive Magistrate on the eleventh or before the Sub Judge on the thirteenth, although remand orders were obtained from both at their residences after office hours, and he was released on bail on the sixteenth. His wife moved a habeas corpus petition.

In one line

Where the law gives a right it gives a remedy to enforce it, so a right that no court will protect is not a right at all.

In the wording a student can write in an exam: ubi jus ibi remedium means that where there is a right there is a remedy; the maxim asserts that a legal right necessarily carries with it a means of enforcement, that a new remedy may be fashioned where the existing ones are inadequate, and that the absence of a precedent is not a reason to leave a violated right unremedied; its limits are that the right must be a legal right and not a moral one, and that the maxim does not create rights, it only enforces them.

The words

Jus means a legal right or authority, not merely an interest. Remedium means the means by which a right is enforced or a wrong redressed.

The maxim is therefore not "every harm has a remedy". It is "every legal right has a remedy", and the difference is the whole of chapter [Damnum Sine Injuria].

What the maxim actually does

It supports the torts actionable without damage. If a legal right exists, its violation must be actionable, otherwise the right is unenforceable. Ashby v. White, decided in 1703, is the case in which the maxim and injuria sine damno meet: an elector wrongfully prevented from voting recovered damages although his candidate was elected anyway.

It licenses a court to fashion a remedy. Where an existing form of action does not fit, the maxim is the reason a court may still give relief rather than send the plaintiff away.

It is the seed of the constitutional remedy in India. The most important modern use of the maxim is not in a tort suit at all.

The Indian development

Facts. Rudul Sah v. State of Bihar, AIR 1983 SC 1086, decided on 1 August 1983. Rudul Sah was acquitted by the Court of Sessions at Muzaffarpur on 3 June 1968 and was kept in jail until 16 October 1982, more than fourteen years after his acquittal. He filed a habeas corpus petition under article 32 asking for release and also for compensation.

Held. By the time the petition was heard he had been released, so the prayer for release did not survive. The Court held that its power under article 32 is not confined to issuing a writ of release, and that it may award compensation where the right to liberty has been grossly violated, because otherwise the right would be reduced to a paper guarantee. It directed the State of Bihar to pay Rs. 30,000 in addition to a sum already paid, described the award as a palliative, and left him free to sue for damages in the ordinary way.

In one line

A person who freely agrees to run a risk cannot afterwards complain of the harm that risk causes.

In the wording a student can write in an exam: volenti non fit injuria means that no injury is done to one who consents; where the plaintiff, with full knowledge of the nature and extent of the risk, freely and voluntarily agreed to undergo it, he cannot sue for the harm that follows, and the defence is a complete one, but knowledge alone is not consent, the consent must be free and not obtained by fraud or coercion or under legal or economic compulsion, and it is no defence to an act which is itself unlawful, to a rescuer, or where a statute imposes the duty.

The two ingredients

Knowledge of the risk. The plaintiff must have known that the risk existed and understood its nature and extent. A person who does not know what he is agreeing to has not agreed.

Free and voluntary assumption of it. He must have accepted the risk of his own will. The Latin tag for the difference is scienti non fit injuria, sed volenti, which is the answer to the commonest error: knowledge is not the same as consent.

Both are required. A workman who knows the machine is dangerous, and works it because he will be dismissed if he does not, has knowledge without free consent, and the defence fails.

How the consent may be given

Expressly, as where a patient signs a consent form before an operation, or a spectator buys a ticket bearing a condition.

By implication from conduct, as where a player takes the field in a game of cricket and accepts the risks ordinarily incidental to it, or a spectator sits in a stand and accepts the risk of a ball being struck into it.

Implied consent extends only to the ordinary risks of the activity, not to negligence beyond them. A boxer consents to being hit in the ring, not to being hit after the bell.

The limits of the defence

This is where marks are won, because a bare statement of the maxim is worth little.

1. Consent must be free. Consent obtained by fraud, or by coercion, or given under compulsion, is not consent. The employment cases are the standard illustration: a workman does not consent to a danger merely because he continues in a job in which he cannot avoid it.

2. Knowledge is not consent. A person who knows of a danger and has no practical choice but to face it has not accepted the risk.

3. The defence does not apply to a rescuer. A person who is injured while attempting to save life or property endangered by the defendant's negligence has not freely accepted the risk: he acted under the compulsion of a moral or legal duty. This is the rescue rule, and it applies to police officers, doctors and ordinary bystanders alike.

In one line

A tort is discharged when a liability that once existed comes to an end, as against a defence, which is a reason why it never arose.

In the wording a student can write in an exam: liability in tort is extinguished or discharged by the death of a party so far as the action does not survive, by waiver, by accord and satisfaction, by release, by acquiescence, by a judgment recovered, and by the expiry of the period of limitation; a general defence, by contrast, denies that liability ever arose, and the two must not be confused because the burden and the timing of each are different.

Defence against discharge

A defence answers the question "was the defendant ever liable?" Volenti non fit injuria, inevitable accident and statutory authority all say that no wrong was committed at all.

A discharge concedes that liability arose and says that it has since come to an end. Accord and satisfaction, release and limitation all assume a wrong and then extinguish the remedy for it.

The practical difference: a defence is proved from the facts of the incident, a discharge from what happened afterwards.

The seven modes

1. Death of a party. At common law the maxim actio personalis moritur cum persona, a personal action dies with the person, ended the claim on the death of either side. Chapter [Death and the Fatal Accidents Act 1855] works out how far that is now altered: sections 1A and 2 of the Fatal Accidents Act 1855 give the family and the estate an action where a death is caused by a wrongful act, and section 166(5) of the Motor Vehicles Act 1988, in force from 1 April 2022, makes the injured person's own claim survive to his legal representatives whatever the cause of his death. Outside these, a purely personal claim such as defamation still dies with the party.

2. Waiver. Where the same facts give two inconsistent remedies, a plaintiff who elects one may be taken to have abandoned the other. The classic example is a plaintiff whose goods have been wrongfully taken and sold: he may sue in tort for conversion, or he may treat the sale as made on his behalf and sue for the price. He may not do both, and choosing one waives the other.

3. Accord and satisfaction. Accord is the agreement by which the injured person accepts something in place of his right of action. Satisfaction is the actual performance of that agreement. The two together discharge the liability. An accord without satisfaction does not, so a promise to pay that is never kept leaves the original claim alive.

4. Release. A release is a giving up of the right of action by the person entitled to it, without any consideration passing. In English law it required a document under seal; in India a release supported by nothing may still be effective if it amounts to a completed relinquishment, but a release obtained by fraud, coercion or undue influence is no release at all.

In one line

A claim in tort must be brought within the period the Limitation Act 1963 fixes for that particular wrong, and most of those periods are one year.

In the wording a student can write in an exam: section 3 of the Limitation Act 1963 requires a court to dismiss a suit instituted after the prescribed period even where limitation is not set up as a defence; the periods for the various torts are in Part VII of the Schedule, articles 72 to 91, and are one, two or three years according to the wrong; time ordinarily runs from the act or omission, section 22 gives a fresh period at every moment of a continuing tort, section 23 postpones the start where the wrong is not actionable without special damage, and section 27 extinguishes the right itself where the suit is for possession of property.

Why limitation exists

Three reasons, and an examiner likes to see them.

Evidence decays. Witnesses die and memories fail, and a claim tried twenty years late is not tried fairly.

A defendant is entitled to certainty. A person cannot arrange his affairs if a claim may be made against him at any time forever.

The diligent are preferred. The maxim is vigilantibus, non dormientibus, jura subveniunt, the law helps those who are vigilant and not those who sleep on their rights.

The rule that catches students out

Section 3 provides that every suit instituted after the prescribed period shall be dismissed although limitation has not been set up as a defence. Limitation is therefore not merely a plea for the defendant to take; it is a duty on the court. A defendant who forgets to plead it does not thereby lose it.

Section 4 saves a plaintiff whose period expires on a day the court is closed: the suit may be instituted on the day the court reopens. Section 5 allows an appeal or an application, not a suit, to be admitted after the period where the applicant satisfies the court that he had sufficient cause for not preferring it in time.

The tort articles, as they stand in the Schedule

Part VII of the Schedule is headed "Suits relating to tort", and these are its articles.

In one line

A general defence is a reason why the defendant is not liable even though the plaintiff has proved everything his tort requires.

In the wording a student can write in an exam: the general defences available in an action for tort are volenti non fit injuria, the plaintiff being himself the wrongdoer, inevitable accident, act of God, private defence, necessity, mistake, statutory authority, judicial and quasi-judicial acts, and parental and quasi-parental authority; each is pleaded and proved by the defendant, and each denies liability rather than merely reducing damages.

What makes a defence "general"

A specific defence belongs to one tort: truth is a defence to defamation and to nothing else; prescription is a defence to nuisance and to nothing else.

A general defence may be raised in an action for any tort, subject to its own conditions. That is why they are taught together in Module I rather than under each wrong.

The burden of pleading and proving a general defence lies on the defendant. The plaintiff proves his tort; the defendant then answers it.

1. Volenti non fit injuria

Taught in full in chapter [Volenti Non Fit Injuria]. In summary: knowledge of the nature and extent of the risk, plus free and voluntary acceptance of it, is a complete defence; knowledge alone is not; and the defence does not run against a rescuer, against an unlawful act, or against a statutory duty.

2. The plaintiff is himself the wrongdoer

The old maxim is ex turpi causa non oritur actio, no action arises from a base cause. A plaintiff cannot found a claim on his own illegal act.

The rule is narrower than it looks and a student who states it broadly is wrong. The question is not whether the plaintiff was doing something unlawful when he was hurt, but whether his claim requires him to rely on his own illegality. A trespasser who is shot by the occupier recovers, because his trespass does not license the shooting; a burglar injured by a defective staircase may fail, because the only reason he was on the stairs was the burglary.

So the working test is connection, not coincidence. The unlawful act must be so bound up with the claim that the court cannot give relief without appearing to reward it.

3. Inevitable accident

An inevitable accident is one which could not have been avoided by the exercise of ordinary care, caution and skill by the defendant. It is not an accident that nobody could conceivably have avoided; it is one that this defendant, taking reasonable care, could not have prevented.

The defence is really a denial of negligence, and its practical importance has shrunk for two reasons. Where liability depends on fault, the plaintiff must prove fault anyway, so the defence adds little. And where liability is strict or absolute, inevitability is no answer at all: the whole point of the rule in Rylands v. Fletcher is that the defendant is liable although he was careful, and M.C. Mehta v. Union of India, AIR 1987 SC 1086, removed even the exceptions for hazardous enterprises.

In one line

These are the defences that justify the act: the defendant did it in self-defence, out of necessity, under a mistake, under statutory authority, in a judicial capacity, or in the exercise of parental authority.

In the wording a student can write in an exam: private defence permits reasonable and proportionate force to protect person or property; necessity permits an act done to prevent a greater harm; mistake is generally no defence but excuses in the few torts requiring a particular state of mind; statutory authority is a complete answer to what the legislature has authorised, including its necessary consequences, if the act is done without negligence; a judge is protected for acts done in the discharge of judicial duty; and a parent or a person standing in the place of a parent may do what is reasonably necessary for the child.

1. Private defence

Every person may use reasonable force to defend his own body, the body of another, and property in his possession, against an unlawful attack. The right is one the law of torts shares with the criminal law: sections 34 and 35 of the Bharatiya Nyaya Sanhita 2023 declare that nothing is an offence which is done in the exercise of the right of private defence and set out the extent of that right, and the same standards are used to test the defence in a civil action.

The force must be necessary. If the attack can be avoided without force, force is not necessary.

The force must be proportionate. A person may repel a slap with a push, not with a knife, and the law measures the response against the threat and not against the outcome.

It protects property as well as the person. But the value of property never justifies force calculated to cause death.

It may be used for another person. A stranger may intervene to defend somebody being attacked.

2. Necessity

An act which would otherwise be a tort is excused where it was done to prevent a greater harm. The classical examples are pulling down a house to stop a fire spreading, throwing cargo overboard to save a ship, and a surgeon operating on an unconscious patient to save life.

Three conditions matter. The harm threatened must be greater than the harm done. The defendant must act reasonably in the circumstances as they appeared to him. And necessity is no defence where the defendant himself created the emergency.

Necessity is not the same as private defence. Private defence is directed against a wrongdoer; necessity is usually directed against an innocent person or his property, which is why the law confines it narrowly.

The maxim the examiner asks for here is salus populi suprema lex, the welfare of the people is the supreme law. It is the principle on which necessity rests: an interference with one person's rights is justified where it was the only way to avert a greater harm to the public or to others. A second maxim, necessitas inducit privilegium quoad jura privata, necessity confers a privilege as against private rights, says the same thing of private necessity.

In one line

Trespass to the person is the group of torts that protect the body and personal liberty against direct interference: battery, assault, mayhem and false imprisonment.

In the wording a student can write in an exam: trespass to the person consists of any direct and intentional interference with the body or the liberty of another without lawful justification; it comprises battery, which is the actual application of force, assault, which is putting another in reasonable apprehension of immediate force, mayhem, which is an aggravated battery depriving a person of a member useful in fighting, and false imprisonment, which is total restraint of liberty; each is actionable per se, that is, without proof of damage, and each is also an offence under the penal law.

The three features they share

1. The interference must be DIRECT. This is what separates a trespass from an action on the case, and from negligence. Throwing a stone at a person is a battery, because the force is applied by the act itself. Leaving a stone on a dark path so that somebody trips over it is not a battery; it may be negligence. The old illustration is a log thrown on to a highway: it is trespass if it hits somebody as it falls, and a nuisance or negligence if somebody stumbles over it afterwards.

2. They are actionable per se. The plaintiff need not prove that he suffered any loss. This is injuria sine damno, and chapter [Injuria Sine Damno] explains why the law is like that. A man detained for four days in comfort has been falsely imprisoned as surely as one detained in a cell.

3. The act must be intentional or negligent, and voluntary. A person who is pushed into another has not committed a battery; the person who pushed him has. An act done in a fit or while asleep is not voluntary and is not a trespass.

The vocabulary

Force, in the law of battery, does not mean violence. The least touching of another in anger, or without consent and without lawful justification, is enough.

Actionable per se means actionable in itself, without proof of damage.

Direct means that the injury follows immediately from the act, rather than as a further consequence of it.

Consequential injury is harm that follows a wrongful act at one remove, and is the province of negligence and of the action on the case.

Where each of the four fits

In one line

Battery is the actual application of force to another person, however slight, without his consent and without lawful justification.

In the wording a student can write in an exam: battery is the intentional and direct application of physical force to the person of another without lawful justification; the force may be of the slightest kind and no injury need result, since the tort is actionable per se; it is committed as much by contact through an object or a substance as by the hand, and it is answered by consent, private defence, necessity, lawful arrest and lawful authority.

The essentials

1. Use of force. Any physical contact suffices. Spitting on a person, throwing water at him, snatching a book from his hand, pulling a chair away as he sits down and setting a dog on him are each a battery. The force need not be violent and need not hurt.

2. Without lawful justification. The contact must be one the law does not permit. This is where consent, private defence, necessity and lawful authority operate.

3. Directness. The force must be applied by the defendant's act, immediately. Contact through an instrument or a missile is direct; harm that follows later as a consequence is not.

4. Intention, or at least a voluntary act. The defendant must have meant the act. He need not have meant the harm, and he need not have known who would be struck.

Damage is NOT an essential. A battery is complete when the contact happens.

What is not a battery

The ordinary contact of daily life. Being jostled in a crowded train, tapped on the shoulder to attract attention, or brushed against in a queue is not actionable, because such contacts are generally accepted as unavoidable.

Contact with consent. A surgeon who operates with consent, a barber who cuts hair, a player tackled in a game, and a passenger who takes a crowded bus have all consented, expressly or by implication, to contact of that kind. Chapter [Volenti Non Fit Injuria] sets out the limits, and the consent extends only to the ordinary risks of the activity.

Contact by an involuntary act. A person pushed into another, or moving in a fit, has not acted voluntarily.

Contact justified by law. A police officer making a lawful arrest, a parent restraining a child, a person using reasonable force in private defence.

The criminal counterpart

The penal law does not use the word battery. Section 129 of the Bharatiya Nyaya Sanhita 2023 defines criminal force: intentionally using force to any person without that person's consent, in order to commit an offence, or intending or knowing it likely that the force will cause injury, fear or annoyance to the person to whom it is used. Section 131 punishes assault or criminal force otherwise than on grave and sudden provocation.

In one line

An assault is an act that puts another in reasonable apprehension that force is about to be used on him, whether or not any force follows.

In the wording a student can write in an exam: an assault is any act of the defendant which directly and either intentionally or negligently causes the plaintiff reasonably to apprehend the immediate infliction of force on his person; no contact is necessary and no damage need be proved, since the tort is actionable per se, and what must be shown is a reasonable apprehension of immediate force together with an apparent present ability to carry the threat out.

The essentials

1. An act, not a mere omission. Standing still is not an assault, however alarming the standing man looks.

2. Reasonable apprehension of force. The test is objective. It is not whether the plaintiff was frightened but whether a reasonable person in his position would have expected force to follow. A brave man who is not afraid is still assaulted.

3. The force apprehended must be immediate. A threat of harm next week is not an assault, whatever else it may be. The apprehension must be of force about to be applied now.

4. Apparent present ability. The defendant must appear able to carry out the threat. A man who points an unloaded gun which the plaintiff believes to be loaded assaults him, because the ability is apparent; a man who shakes his fist from a moving train does not, because he cannot reach.

Words, and what they do

The old rule was that mere words are not an assault. The modern position is more careful, and it is what an examiner is looking for.

Words may negative an assault. A raised hand accompanied by "if you were not my friend I would strike you" is not an assault, because the words tell the hearer that no force is coming.

Words may make an act an assault, or explain it. A gesture that would be ambiguous by itself may be an assault when the accompanying words show that force is intended.

A conditional threat may be an assault where the condition is one the plaintiff is not bound to comply with, as where a man is told to leave a place he is entitled to be in or be thrown out.

The criminal counterpart

Section 130 of the Bharatiya Nyaya Sanhita 2023 defines assault: whoever makes any gesture, or any preparation, intending or knowing it to be likely that it will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to him. Section 131 punishes whoever assaults or uses criminal force otherwise than on grave and sudden provocation given by that person. The penal ingredients are a useful check on the civil ones, since the Sanhita too asks for a gesture or preparation causing an apprehension of immediate force.

In one line

Mayhem is an aggravated battery which deprives a person of a part of the body useful in defending himself.

In the wording a student can write in an exam: mayhem, sometimes spelled maim, is a form of trespass to the person consisting of a bodily injury that deprives the plaintiff of the use of a member which would be useful to him in fighting or in defending himself; it originated as a distinct wrong because such an injury weakened the King's fighting strength, and in modern law it is treated as an aggravated battery, the corresponding penal provision in India being the definition of grievous hurt.

The origin of the wrong

Mayhem is a very old head of liability and its history explains its odd shape. In medieval England the King was entitled to the military service of his subjects, and an injury that made a man less able to fight was therefore a wrong to the King as well as to the man. Depriving him of a hand, a finger, an eye or a front tooth was mayhem; injuries that disfigured without weakening, such as cutting off an ear or the nose, were not.

That distinction between what weakens and what merely disfigures is what students are expected to know, and it is also why the category has practically disappeared: modern law compensates disfigurement as readily as disablement.

The position in modern law

In tort, mayhem is not a separate cause of action in India. A plaintiff sues for battery, and the maiming goes to the seriousness of the wrong and therefore to the damages. What survives of mayhem is the idea that some batteries are far graver than others.

In the penal law, the corresponding idea is grievous hurt. Section 116 of the Bharatiya Nyaya Sanhita 2023 designates the kinds of hurt that are grievous, and the list is recognisably descended from mayhem: emasculation, permanent privation of the sight of either eye, permanent privation of the hearing of either ear, privation of any member or joint, destruction or permanent impairing of the powers of any member or joint, permanent disfiguration of the head or face, fracture or dislocation of a bone or tooth, and any hurt which endangers life or which causes the sufferer to be during the space of fifteen days in severe bodily pain or unable to follow his ordinary pursuits.

Note that permanent disfiguration of the head or face is in the list. The penal law, unlike the old law of mayhem, does not require the injury to weaken the victim's ability to fight.

Where the idea still does real work

Damages. The measure of general damages for personal injury turns on the nature and permanence of the disability, and a maiming injury attracts a far larger award. Chapter [Kinds of Damages] and, for accident claims, chapter [Computing Just Compensation] work out how a court arrives at the figure.

In one line

False imprisonment is the total restraint of a person's liberty for any length of time, without lawful justification.

In the wording a student can write in an exam: false imprisonment is the infliction of bodily restraint which is not expressly or impliedly authorised by law; the restraint must be total, so that a partial obstruction leaving a reasonable means of escape is not enough, but no physical touching, no prison and no minimum period is required, the tort is actionable per se, and knowledge of the restraint is not essential though it goes to the damages.

The words

False here means wrongful, not untrue. Imprisonment does not mean a prison; it means any confinement within limits set by another.

So the tort has nothing necessarily to do with either falsehood or a jail, and the name misleads a beginner every time.

The essentials

1. Total restraint of liberty. The plaintiff must be prevented from going in every direction. If he is stopped from going one way but may reasonably go another, the restraint is partial and the tort is not committed. A person shut in a room is imprisoned; a person prevented from crossing a bridge who may walk round is not.

The escape route must be reasonable. A window on the third floor is not a means of escape, and nor is a route through fire, water, or trespass on somebody's land.

2. Without lawful justification. Restraint authorised by law is not false imprisonment: a lawful arrest, a lawful remand, the detention of a passenger by the conditions on which he entered a place, and reasonable parental control are all justified.

3. No physical force is needed. The restraint may be by physical barriers, by a show of authority, or by the assertion of legal power that the plaintiff submits to. A person who stays where he is because a police officer tells him he is under arrest is imprisoned.

4. Any length of time. A restraint of a few minutes is the tort.

5. Knowledge is not essential. A person locked in a room while asleep, or a person told the door is locked when it is not, may still be falsely imprisoned. Knowledge goes to the amount of damages, not to the existence of the tort.

Defences

Lawful arrest. An arrest made in accordance with the law of criminal procedure is justified. It is for the person who made the arrest to prove that it was lawful.

Judicial authority. Detention under a valid order of a court is justified, and the officer executing it is protected.

Consent. A person who enters premises on stated conditions, and is held to those conditions, is not imprisoned.

In one line

Trespass to land is entering, or putting something on, land in another's possession without permission, and it is actionable although no harm is done.

In the wording a student can write in an exam: trespass to land is any unjustifiable interference with land in the possession of another, committed by entering upon it, by remaining on it after the right of entry has ended, or by placing or projecting any object upon it; it is actionable per se, that is, without proof of damage; the interest protected is POSSESSION and not ownership, so a person in possession may sue even a rightful owner who enters without process of law.

Possession, not ownership

This is the most important sentence in the chapter. The action protects possession. A tenant, a licensee in exclusive occupation, and even a person in wrongful possession may sue a stranger who enters. An owner who is out of possession cannot sue in trespass; he must first recover possession, and chapter [Remedies for Trespass to Land] explains how.

The reason is practical: the law wants disputes about land settled in court rather than by whoever is strongest on the day. Section 6 of the Specific Relief Act 1963 embodies exactly that policy by giving a summary suit to a person dispossessed without his consent otherwise than in due course of law, even against the true owner.

The three ways it is committed

1. Entry upon land. Walking on to it, driving on to it, sending an animal on to it, or entering any part of it. The entry need only be intentional in the sense that the defendant meant to be where he was: a person who walks on to land honestly believing it to be his own is still a trespasser, since mistake is no defence, as chapter [General Defences II] explains.

2. Remaining on land. A person who entered lawfully and stays after his right has ended becomes a trespasser. A guest asked to leave who does not leave is the standard example.

3. Placing things on land. Throwing rubbish, piling building material, letting a wall lean over, growing tree branches across the boundary, or allowing water to flow on to the neighbour's land.

Trespass to the airspace and to the subsoil

Possession of land carries with it possession of the column of space above and the soil beneath, so far as is necessary for the ordinary use and enjoyment of the land.

Above. A signboard projecting over a neighbour's land, a crane swinging across it, or wires strung over it are trespasses. Aircraft flying at a reasonable height are not, and statutes deal with them expressly.

Below. Tunnelling or mining under the surface, or driving foundations into the neighbour's subsoil, is a trespass.

In one line

A person who enters under an authority given by the law and then abuses it is treated as a trespasser from the moment he entered, not merely from the moment he abused it.

In the wording a student can write in an exam: where a person enters land under an authority conferred by the law, as distinct from an authority given by the occupier, and afterwards abuses that authority by a positive wrongful act, he becomes a trespasser ab initio, that is, from the beginning, and his entire presence on the land, from the entry onwards, is treated as wrongful; the doctrine does not apply to an authority given by the party, and it is not attracted by a mere omission.

The words

Ab initio is Latin for "from the beginning". The doctrine is a fiction: the law pretends that the entry, which was lawful when it happened, was unlawful all along.

Why the law invented it

The purpose was to control officials. A person entering under a private licence can be sued for breach of the licence. A person entering under an authority given by law, an officer levying a distress, a Magistrate's officer executing process, an innkeeper's guest, could not, because the occupier gave him nothing to breach.

The doctrine supplied the sanction. If such a person abuses the authority, the law withdraws the authority retrospectively, so he is answerable in trespass for the whole of his presence and for everything he did there.

The three conditions

1. The authority must be given by the LAW, not by the party. This is the condition students forget. If the occupier himself gave the permission, an abuse of it makes the person a trespasser only from the moment of the abuse, because the occupier's remedy is on the terms of his own licence.

2. The abuse must be a positive wrongful act, a misfeasance. A mere failure to do something required, a nonfeasance, does not make the entrant a trespasser ab initio. An officer who seizes goods and neglects to give a receipt has failed to act; an officer who seizes goods and then uses them for himself has done a wrongful act.

3. The abuse must relate to the authority under which the entry was made. An officer who enters to execute a warrant and then commits an unconnected wrong is liable for that wrong, not necessarily as a trespasser from the beginning.

The criticism

The doctrine has been criticised for two reasons, and an examiner likes both.

It is artificial. It makes lawful conduct unlawful by hindsight, which is not how the law usually works.

It is unnecessary today. A person injured by an abuse of official power in India has other remedies: a suit for the specific wrong committed, and a petition under article 226 or 32, in which compensation may be awarded for the violation of a fundamental right, as chapter [Constitutional Tort] explains. The doctrine survives mainly as an examination topic and as a reminder that authority conferred by law is conferred for a purpose.

In one line

A person whose land has been trespassed on may recover damages, get an injunction, sue for possession, or in a proper case put the trespasser out himself.

In the wording a student can write in an exam: the remedies for trespass to land are judicial and extra-judicial; the judicial remedies are an action for damages, which lies without proof of loss because the tort is actionable per se, an action for mesne profits for the period of wrongful occupation, an injunction under sections 38 and 39 of the Specific Relief Act 1963 where the trespass is continuing or threatened, and a suit for possession under section 5 or the summary suit under section 6 of that Act; the extra-judicial remedies are re-entry and the expulsion of a trespasser using no more force than is reasonably necessary.

The judicial remedies

1. Damages. Since the tort is actionable per se, a plaintiff who proves the trespass recovers even if he lost nothing, and the damages are then nominal. Where the land is damaged, the measure is the diminution in its value or the cost of restoration. Where the trespasser has taken a benefit, the plaintiff may recover the value of the use.

2. Mesne profits. Where the trespasser has occupied the land, the plaintiff may recover the profits the occupier actually received or might with ordinary diligence have received, together with interest, but not profits due to the occupier's own improvements.

3. Injunction. Sections 38 and 39 of the Specific Relief Act 1963 govern. Section 38 allows a perpetual injunction to prevent the breach of an obligation, and expressly covers the case of an invasion of a right to property where there is no standard for ascertaining the actual damage, or where compensation in money would not be adequate relief. Section 39 provides for a mandatory injunction, which compels the defendant to undo what he has done, for example to remove a structure he has put up.

4. A suit for possession. Where the trespasser has taken possession, the owner's remedy is not trespass but recovery of possession, and there are two routes.

Section 5 against section 6, the point that carries marks

Section 5 provides that a person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure 1908. This is the ordinary suit, based on title. It is tried at length, the plaintiff must prove that he is entitled to possession, and the decree settles the title.

Section 6 is different in every respect. It provides that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he, or any person claiming through him, may by suit recover possession, notwithstanding any other title that may be set up in such suit. The suit must be brought within six months of the dispossession, and not against the Government. No appeal or review lies from an order or decree passed in such a suit, though the person defeated may sue on his title afterwards.

In one line

Trespass to goods is direct interference with goods in another's possession, and it is actionable without proof of any damage.

In the wording a student can write in an exam: trespass to goods is any direct and wrongful interference with goods in the possession of another, committed by taking them, by moving them, or by damaging or otherwise physically interfering with them; the interest protected is possession, the tort is actionable per se, and the interference must be direct, so that harm caused at one remove belongs to negligence.

The essentials

1. Goods in the plaintiff's possession. As with land, the action protects possession. A bailee, a finder and a person in wrongful possession may all sue a stranger, and an owner out of possession may not sue in trespass, though he may sue in conversion.

2. Direct interference. Taking the goods away, moving them from one place to another, killing an animal, scratching a car, letting the air out of a tyre, or beating a dog. Directness separates trespass from a consequential injury.

3. Intention, or at least a voluntary act. As with trespass to land, mistake is no defence: taking another's umbrella believing it to be your own is a trespass.

4. No damage need be proved. The tort is actionable per se. Merely moving goods without permission is enough, though the damages will then be nominal.

The three torts protecting goods, and how to keep them apart

The practical difference is what the plaintiff gets. Trespass compensates the interference; conversion makes the defendant pay for the goods as though he had bought them; detinue aims at getting the thing itself back.

Defences

Consent of the person in possession.

Lawful authority, such as seizure under legal process, or the exercise of a lien or of a right of distress.

Retaking of goods by a person entitled to immediate possession, using no more force than is reasonable, which chapter [Extra-Judicial Remedies] deals with as recaption.

Necessity, as where goods are moved to save them from fire.

Inevitable accident, since the act must be voluntary.

Remedies

Damages for the interference, measured by the diminution in the value of the goods, or nominal where there is none.

In one line

Detinue is the wrongful detention of goods after the person entitled to them has demanded their return.

In the wording a student can write in an exam: detinue is the wrongful detention of a chattel by a person in possession of it against the person entitled to its immediate possession; the plaintiff must prove that he had a right to immediate possession, that he demanded the goods, and that the defendant refused to deliver them, and the relief sought is the return of the goods themselves or, in the alternative, their value together with damages for the detention.

The essentials

1. The plaintiff must have a right to the immediate possession of the goods. An owner who has hired the goods out for a fixed term has no such right until the term ends, so he cannot sue in detinue in the meantime.

2. The defendant must be in possession. Detinue lies against a person who has the goods, not against a person who once had them and has parted with them, whose wrong is conversion.

3. A demand and a refusal. The demand may be in any form and the refusal may be by conduct, but there must be a real refusal. A request for a reasonable time to check the claimant's title is not a refusal.

Detinue in India: sections 7 and 8 of the Specific Relief Act 1963

Section 7 provides that a person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure 1908. Explanation 1 allows a trustee to sue for possession of movable property in which the beneficiary is interested, and Explanation 2 provides that a special or temporary right to present possession is sufficient to support such a suit.

Section 8 provides for the case where the defendant has the goods but is not their owner. It says that a person having possession or control of an article of movable property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession in four cases: where the thing is held by the defendant as the agent or trustee of the plaintiff; where compensation in money would not afford adequate relief; where it would be extremely difficult to ascertain the actual damage; and where the possession of the thing claimed has been wrongfully transferred from the plaintiff.

The Explanation to section 8 goes further and helps the plaintiff with his proof. Unless the contrary is proved, the court shall presume, in respect of any article claimed under clause (b) or clause (c), that compensation in money would not afford adequate relief, or, as the case may be, that it would be extremely difficult to ascertain the actual damage.

In one line

Conversion is dealing with goods in a way that denies the owner's right to them, and the defendant pays their full value.

In the wording a student can write in an exam: conversion, also called trover, is an act of wilful interference with a chattel, done without lawful justification, by which the person entitled to it is deprived of its use and possession; the essence is a dealing inconsistent with the rights of the person entitled, the intention to challenge his title is not necessary, and the measure of damages is the value of the goods at the date of the conversion, so that the defendant is treated as though he had bought them.

The word

Trover is the old name of the action, from the French trouver, to find, because the plaintiff pleaded a fiction that he had lost the goods and the defendant had found them. The modern name, conversion, describes what the defendant does: he converts the goods to his own use.

The essentials

1. The plaintiff must have possession, or the right to immediate possession. A bailee in possession may sue; so may an owner entitled to immediate possession. An owner who has parted with possession for a fixed term cannot sue during the term.

2. A dealing inconsistent with the plaintiff's right. This is the heart of the tort. It is not enough to touch or move the goods; the defendant must deal with them as though they were his own, or in a way that denies the plaintiff's title.

3. No intention to challenge the title is needed. Honesty is no defence. A person who buys stolen goods innocently, or an auctioneer who sells them for a thief in good faith, converts them.

The ways conversion is committed

By taking, where goods are taken with the intention of exercising dominion over them.

By detention, where the defendant keeps the goods and refuses to deliver them on demand, which is also detinue.

By wrongful delivery, where a bailee delivers the goods to the wrong person.

By wrongful disposition, where the defendant sells, pledges or otherwise disposes of the goods.

By destruction or alteration, where the goods are destroyed, or changed so much that their identity is lost, as by making wine into vinegar.

By wrongful user, where the defendant uses the goods as his own, as where a bailee for storage drives the car.

What is NOT conversion: a mere assertion of a claim without an act, a refusal to deliver made in good faith to check the claimant's title within a reasonable time, and a bare failure to look after the goods, which is negligence.

In one line

Defamation is the publication of a statement that lowers a person in the estimation of right-thinking members of society.

In the wording a student can write in an exam: defamation is the publication to a third person of a false statement concerning the plaintiff which tends to lower him in the estimation of right-thinking members of society generally, or to expose him to hatred, contempt or ridicule, or to cause him to be shunned or avoided; the interest protected is reputation, the statement must be understood as referring to the plaintiff, and the truth of the statement is a complete defence in civil law.

The interest protected

Reputation is what other people think of you, and the law protects it because a person's standing with others determines his livelihood, his relationships and his ability to take part in public life.

The Supreme Court has put reputation on a constitutional footing. In Subramanian Swamy v. Union of India, (2016) 7 SCC 221, the Court held that reputation is an integral part of the right to life under article 21, and used that to justify the criminal law of defamation as a reasonable restriction on the freedom of speech under article 19(2). So in India, defamation is not simply a private grievance; it engages a right the Constitution protects, which is why the balance with free speech is the hardest question in the subject.

The test

The classical test is whether the statement tends to lower the plaintiff in the estimation of right-thinking members of society generally. Each part of that phrase does work.

Tends to lower. The question is the tendency of the words, not whether anybody actually thought less of the plaintiff.

Right-thinking members. Not the plaintiff's own circle, and not people with unusual or discreditable standards. A statement that a man informed the police about a crime may lower him among criminals and is not defamatory.

Of society generally. A statement that offends a small group is not enough unless a substantial and respectable section of society would think less of the plaintiff.

Two supplementary tests are used in the cases: whether the words expose the plaintiff to hatred, contempt or ridicule, and whether they cause him to be shunned or avoided.

What is not defamation

Mere abuse. Words spoken in anger and understood by the hearers as abuse rather than as an assertion of fact are not defamatory. Calling a man a fool in a quarrel is vulgar, not actionable.

Statements true in substance. Truth is a complete defence in civil law, and chapter [Defences to Defamation] works it out.

Statements about the dead, which give no civil action to the estate, though in some circumstances they may defame a living relative.

In one line

Libel is defamation in a permanent form, slander is defamation in a transient form, and in India the difference matters far less than in England.

In the wording a student can write in an exam: libel is the publication of a defamatory statement in some permanent form, such as writing, printing, a picture, an effigy or a broadcast, while slander is its publication in a transient form, such as spoken words or gestures; in English law libel is actionable per se and is also a crime, while slander is actionable only on proof of special damage except in four cases; in India the distinction has largely not been followed, and the better view, taken by several High Courts, is that slander too is actionable without proof of special damage.

The English distinction

Libel is in permanent form: writing, print, a picture, a statue, an effigy, a film, and by statute in England a broadcast. It is actionable per se and is also a crime.

Slander is in transient form: spoken words, gestures, sign language. It is actionable only on proof of special damage, which means actual pecuniary loss, and it is not ordinarily a crime.

Special damage means some material or temporal loss, such as the loss of employment, of custom, or of the hospitality of friends. Mere loss of reputation or hurt feelings is not special damage.

The four exceptions, where slander is actionable per se

1. Imputation of a criminal offence punishable with imprisonment.

2. Imputation of a contagious or infectious disease which would cause the plaintiff to be shunned.

3. Imputation of unfitness, dishonesty or incompetence in an office, profession, calling, trade or business carried on by the plaintiff.

4. Imputation of unchastity or adultery to a woman or girl, made actionable in England by statute.

Why the distinction was drawn, and why it is criticised

The historical reasons were the permanence of the written word, the deliberation involved in writing, and the wider circulation print achieves.

The criticisms are that a spoken word on television now reaches more people than a printed one, that a defamatory remark may be repeated indefinitely, and that the line between permanent and transient has become arbitrary. A defamatory statement read aloud from a script is slander; the script itself is libel.

The Indian position

This is the paragraph MU is asking for.

Indian law has not adopted the English distinction in its full form. The better view, taken by several High Courts, is that in India slander is also actionable without proof of special damage, and the reasons given are these.

The law came here as justice, equity and good conscience. As chapter [Tort in India] explains, English rules apply only so far as they suit Indian conditions, and a rule that leaves a poor plaintiff without a remedy because he cannot prove a rupee of loss does not.

In one line

The plaintiff must prove three things: the statement was defamatory, it referred to him, and it was published to somebody other than himself.

In the wording a student can write in an exam: the essentials of defamation are that the statement complained of be defamatory, that is, that it tend to lower the plaintiff in the estimation of right-thinking members of society; that it refer to the plaintiff, whether by name or by such description or circumstances as would lead reasonable people who know him to understand that he is meant; and that it be published, that is, communicated to at least one person other than the plaintiff himself.

Essential one: the statement must be defamatory

Chapter [Defamation: What It Is] states the test. Two refinements belong here.

The words are read as a whole and in their ordinary meaning. A sentence is not made defamatory by taking three words out of it, and a defamatory sting may be removed by the rest of the article, which is the rule known as the bane and the antidote.

Innuendo. Words innocent on their face may be defamatory because of facts known to the people who read them. That secondary meaning is called an innuendo, and the plaintiff must plead it and prove the extrinsic facts.

The classical illustration is a statement that a woman has given birth to a child, innocent in itself, but defamatory to those who know she is unmarried. A modern one is a report that a named restaurant was inspected by a food safety team, innocent to most readers, defamatory to those who know that the team inspects only after a complaint of adulteration.

Distinguish the true or legal innuendo, which depends on extrinsic facts and must be pleaded, from the false or popular innuendo, which is merely the ordinary meaning read between the lines and need not be.

Essential two: the statement must refer to the plaintiff

By name is the easy case.

Without a name, the test is whether the words would be understood by reasonable people who know the plaintiff as referring to him. A description of "the chairman of the municipal committee" identifies whoever holds that office.

Intention is irrelevant. A writer who invents a name and finds that a real person of that name is thought to be meant may still be liable, because the test is understanding and not intention.

Defamation of a class. A statement about a class is not actionable at the suit of a member unless the class is so small, or the words so pointed, that they can reasonably be understood to refer to him. "All lawyers are thieves" gives no action. "The three partners of the firm X are thieves" gives an action to each of the three.

In one line

The defences are truth, fair comment, absolute privilege, qualified privilege and apology, and malice destroys only the fourth.

In the wording a student can write in an exam: the defences to an action for defamation are justification by truth, which is a complete defence in civil law; fair comment on a matter of public interest, which protects an opinion honestly held and based on true facts; absolute privilege, which protects statements made in Parliament, in judicial proceedings and in certain official communications, however malicious; qualified privilege, which protects a statement made in the discharge of a duty or in the protection of an interest to a person having a corresponding interest, and which is defeated by proof of malice in fact; and apology, which is not a defence at common law but may mitigate damages.

1. Justification, or truth

In a civil action, truth is a complete defence, and the defendant need not show that publication was for the public good.

The whole sting must be proved. It is enough that the statement is substantially true; a minor inaccuracy that does not change the sting does not defeat the defence.

The burden is on the defendant. The law presumes the falsity of a defamatory statement, so the plaintiff need not prove it false.

In the CRIMINAL law the defence is narrower. Section 356 of the Bharatiya Nyaya Sanhita 2023 makes truth a defence only where the imputation is true and its publication is for the public good, which is a question of fact. That difference between the civil and criminal defences is a favourite examination point.

2. Fair comment

The defence protects opinion, not fact, and it has four conditions.

It must be a comment, that is, an expression of opinion, and not an assertion of fact. "He is a dishonest judge" is an allegation of fact; "his judgment shows he did not read the record", based on the judgment, is comment.

The facts on which it is based must be true, and must be stated or sufficiently indicated so that the reader can judge the comment for himself.

It must be on a matter of public interest: the administration of justice, the conduct of public servants, public institutions, published books, plays and performances, and anything a person submits to public judgment.

It must be fair, in the sense of being an opinion an honest person could hold on those facts, however prejudiced or exaggerated. Malice defeats it, because a comment made from an improper motive is not honest.

3. Absolute privilege

Where the occasion is absolutely privileged, no action lies at all, however false the statement and however malicious the maker. The categories are narrow and each rests on a reason of public policy.

In one line

In India defamation is both a civil wrong and an offence, the criminal provision has been held constitutional, and the internet has made the tort a daily one.

In the wording a student can write in an exam: in India a defamed person may sue for damages in tort and may also set the criminal law in motion under section 356 of the Bharatiya Nyaya Sanhita 2023; the Supreme Court upheld the constitutionality of criminal defamation in Subramanian Swamy v. Union of India, holding that reputation is an integral part of the right to life under article 21 and that the provision is a reasonable restriction under article 19(2); the civil and criminal defences differ, since truth alone suffices in the civil action while the criminal exception requires truth and publication for the public good; and publication on the internet is publication wherever the statement is read.

The two remedies, side by side

The two proceedings are independent. An acquittal does not bar the suit, as chapter [Tort Distinguished from Crime] explains.

The constitutional challenge

Facts. Subramanian Swamy v. Union of India, (2016) 7 SCC 221, decided on 13 May 2016. Writ petitions challenged the validity of the criminal law of defamation, then sections 499 and 500 of the Indian Penal Code 1860 together with section 199 of the Code of Criminal Procedure 1973, on the ground that making defamation an offence is an unreasonable restriction on the freedom of speech and expression under article 19(1)(a).

Held. The Court upheld the provisions. It held that reputation is an integral part of the right to life guaranteed by article 21, that the interest in reputation must be balanced against free speech rather than subordinated to it, and that criminal defamation is a reasonable restriction saved by article 19(2). It left the petitioners free to challenge the issue of summons in their individual cases before the High Court under article 226 or section 482 of the Code.

Why it matters here. It settles that the criminal remedy stands beside the civil one in India, and it supplies the constitutional footing for reputation which chapter [Defamation: What It Is] uses.

In one line

These are the wrongs that injure a person through his relationships: enticing away a spouse, harbouring one, seducing a servant or daughter, and depriving somebody of the company or services of a family member.

In the wording a student can write in an exam: the torts affecting personal relations are enticement of a spouse, harbouring a spouse, seduction of a daughter or servant, and the causing of loss of services or of consortium; they developed at a time when a husband had a proprietary interest in his wife's society and a master in his servant's services, most of them are obsolete or abolished in England, and in India the surviving practical head is compensation for loss of consortium and for loss of the services of a deceased family member, which is regularly awarded in motor accident claims.

The historical shape of these wrongs

They rest on two ideas the modern law has abandoned.

The husband's proprietary interest. At common law a husband had a right to his wife's society and services, and an action against anybody who deprived him of them. The wife had no corresponding action.

The master's interest in his servant. A master had an action against a person who injured his servant so that the master lost his services, and the daughter of the house was treated, by a fiction, as a servant so that her father could sue her seducer.

Both ideas have gone, and the wrongs that rest on them have gone with them, with one exception.

The four wrongs

Enticement. Persuading a spouse to leave or to remain apart from the other. It required an active inducement rather than the mere offering of shelter.

Harbouring. Receiving and keeping a spouse who has left, with knowledge and against the other's wishes, so as to prevent a return. Providing shelter to a person fleeing cruelty was never a wrong.

Seduction. The action lay to the father or master, not to the woman, for the loss of her services caused by her seduction, and the fiction that a daughter was a servant was what allowed it. Damages went far beyond the value of any services.

Loss of services and of consortium. Where a person was injured by a wrong, another whose legal relationship gave a right to his services or society could sue for the loss.

What survives, and where it is found today

In England the actions for enticement, harbouring and seduction were abolished by statute in 1970, and the action for loss of services followed.

In India the position is not governed by any such statute, but the actions are effectively dead for the same reasons: the proprietary premise is inconsistent with the equality guaranteed by the Constitution, and matrimonial relief is the appropriate remedy for the conduct these actions were aimed at. What survives, and thrives, is compensation for loss of consortium and for loss of the services of a person killed or injured.

In one line

Nuisance is an unlawful interference with a person's use or enjoyment of land, or with some right over it, or with the public's use of a public place.

In the wording a student can write in an exam: nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it, and it is of two kinds: a public nuisance, which is an act or omission causing common injury, danger or annoyance to the public or to a section of it, and a private nuisance, which interferes with a particular person's use or enjoyment of his land; the essence of the tort is the unreasonableness of the interference, and unlike trespass it is ordinarily an indirect interference requiring proof of damage.

The word

Nuisance comes through French from the Latin nocere, to hurt. The interest protected is not possession, which trespass protects, but enjoyment: the ability to use land in comfort.

Nuisance against trespass, the distinction that decides which action lies

The same facts often support both, and the classical illustration is the tree: planting it over the boundary is a trespass, letting its branches grow over is a nuisance while they remain, and the fruit that falls belongs to the tree's owner.

The two kinds

Public nuisance is an interference with a right common to the public: obstructing a highway, polluting a river, keeping an unsafe building beside a road, carrying on an offensive trade in a crowded locality. It is primarily a crime, and only a person who proves special damage may sue in tort. Chapter [Public Nuisance] works it out.

Private nuisance is an interference with a particular occupier's use or enjoyment of his own land: smoke, smell, noise, vibrations, heat, water, roots, and the escape of things that make life on the land uncomfortable. Chapter [Private Nuisance] works it out.

The one idea that runs through both: reasonableness

No occupier has a right to absolute quiet, clean air or a perfect view, and no occupier may do exactly as he pleases on his own land. Every case is a compromise, and the compromise is expressed as reasonableness: would an ordinary person, occupying that land in that locality, regard the interference as more than he should be expected to put up with?

In one line

A public nuisance harms the public at large, so the State prosecutes it, and a private person may sue only if he proves damage peculiar to himself.

In the wording a student can write in an exam: a public nuisance is an act or an illegal omission which causes any common injury, danger or annoyance to the public, or to the people in general who dwell or occupy property in the vicinity, or which necessarily causes injury, obstruction, danger or annoyance to persons who may have occasion to use any public right; it is an offence and not ordinarily a tort, and a private individual may sue in tort only if he proves special damage, that is, damage particular to himself and different in kind from that suffered by the public generally.

The statutory definition

Section 270 of the Bharatiya Nyaya Sanhita 2023 provides that a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

Two features of that definition matter. The harm must be common, that is, suffered by the public or by a section of it, and a nuisance is not excused merely because it causes some convenience or advantage.

The three routes against a public nuisance

1. Prosecution. The State prosecutes under section 270 of the Bharatiya Nyaya Sanhita 2023. This is the primary remedy, because the wrong is a wrong to everybody.

2. A Magistrate's conditional order. Section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023 allows a Magistrate, on receiving a police report or other information, to make a conditional order requiring a person to remove an unlawful obstruction or nuisance from a public place, to stop a trade or occupation injurious to the health or physical comfort of the community, to stop the construction of a building or dispose of a substance likely to cause a conflagration or explosion, to fence a tank, well or excavation, or to destroy, confine or dispose of a dangerous animal, within a fixed time, or else to appear and show cause. Sections 153 to 156 provide for service of the order, for the person to comply or show cause, for a penalty for failure, and for the procedure that follows.

This is the fastest remedy in practice, and it is the one an ordinary citizen actually uses.

3. A civil suit. Section 91 of the Code of Civil Procedure 1908 provides that in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or such other relief as may be appropriate may be instituted by the Advocate-General, or, with the leave of the court, by two or more persons, even though no special damage has been caused to them. Sub-section (2) preserves any right of suit which exists independently of the section.

In one line

A private nuisance is an unreasonable interference with a particular person's use or enjoyment of his own land.

In the wording a student can write in an exam: a private nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it, committed by an act or omission of the defendant which causes either material damage to the property or substantial interference with the comfort and convenience of the occupier judged by the standard of an ordinary person; the plaintiff must have an interest in the land affected, the interference must be unreasonable, and damage must ordinarily be proved.

The three essentials

1. An unreasonable interference. Not every interference is a nuisance; the question is whether an ordinary occupier in that locality should be expected to put up with it, and chapter [Nuisance: What It Is] sets out the four factors that decide it.

2. The interference must be with the use or enjoyment of land, or with a right over it. Rights over land include easements such as a right of way, a right to light, a right to air through a defined channel and a right to support.

3. Damage. Either material damage to property, or substantial interference with comfort and convenience. Where the plaintiff sues on the interference with an easement, damage is presumed.

Who may sue and who may be sued

Who may sue. The occupier of the land, and an owner out of occupation where the nuisance causes permanent injury to his reversionary interest. A mere licensee without any interest in the land ordinarily cannot.

Who may be sued. The creator of the nuisance, whether or not he is in occupation; the occupier who continues or adopts a nuisance created by somebody else, including a predecessor, a trespasser or nature, once he knows of it and fails to abate it; and the landlord where he authorised the nuisance, or where it existed at the date of letting and he knew of it, or where he undertook to repair.

The kinds of interference

By encroachment, as where roots or branches spread across the boundary.

By physical injury to the land or buildings, as by vibration, fumes that kill crops, or water that undermines a wall.

By interference with comfort, as by noise, smell, smoke, dust or heat.

By interference with an easement or a natural right, as by obstructing a right of way, blocking light through a defined aperture, or withdrawing support from the neighbour's soil.

The rules that decide difficult cases

Malice may make a reasonable use unreasonable. As chapter [The Mental Element in Tort] explains, motive is generally irrelevant, but in nuisance an act done on one's own land for the purpose of annoying a neighbour may be held unreasonable when the same act done for an ordinary purpose would not.

In one line

Prescription and statutory authority are the two real defences; the remedies are damages, an injunction and abatement.

In the wording a student can write in an exam: the defences to an action for nuisance are prescription, where the defendant has continued the nuisance as of right for twenty years so as to acquire an easement, and statutory authority, where the legislature has authorised the very act complained of; the remedies are damages, an injunction under sections 38 and 39 of the Specific Relief Act 1963, and the extra-judicial remedy of abatement, that is, the removal of the nuisance by the person injured.

The defences

1. Prescription. A right to commit what would otherwise be a private nuisance may be acquired as an easement by twenty years of continuous enjoyment as of right. Three points decide most questions.

Time runs from when the nuisance began, not from when the activity began. A factory that has worked for thirty years but whose fumes only began to reach the plaintiff's land five years ago has no prescriptive right.

The enjoyment must be as of right, that is, open, without force and without permission.

Prescription runs against a private nuisance only. No length of time legalises a public nuisance.

2. Statutory authority. Where a statute authorises the act complained of, the harm that inevitably follows is not actionable. As chapter [General Defences II] explains, the authority may be absolute or conditional, and it never authorises negligence.

What is NOT a defence

Prescription for a public nuisance. Time gives no right.

That the plaintiff came to the nuisance. He may buy or occupy land next to an existing nuisance and still sue.

That the defendant's act is for the public benefit. A useful activity carried on unreasonably is still a nuisance, though the point may affect the remedy.

That the nuisance is due to the acts of others as well. Where several people each contribute, each may be liable although his own contribution alone would not be a nuisance.

That reasonable care was taken. Nuisance is not negligence.

That the place is a suitable one for the activity. Suitability of the locality is a factor in deciding reasonableness, not a defence in itself, and it counts for very little where material damage to property is caused.

The remedies

1. Damages. Where the nuisance has caused material damage, the measure is the cost of repair or the diminution in value. Where it has interfered with comfort, the damages are general and are assessed for the inconvenience suffered.

2. Injunction. This is the remedy that actually stops a nuisance, and it is governed by the Specific Relief Act 1963. Section 38 allows a perpetual injunction to prevent the breach of an obligation, and covers the invasion of a right to property where there is no standard for ascertaining the actual damage, or where compensation in money would not be adequate relief. Section 39 allows a mandatory injunction, compelling the defendant to undo what he has done, for example to pull down a wall that obstructs a right to light or to remove a plant that emits the fumes.

In one line

Negligence is the failure to take the care the law requires, causing damage that the law will compensate.

In the wording a student can write in an exam: negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do; its essential components are three, a duty of care owed by the defendant to the plaintiff, a breach of that duty, and resulting damage which is not too remote.

The definition the Supreme Court uses

The definition above is not a textbook writer's. It is the one the Supreme Court adopted in Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, and repeated in Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480, and it is worth reproducing exactly because it is the formula an Indian court applies.

Facts. In Jacob Mathew a patient in a hospital at Ludhiana had difficulty in breathing at about eleven at night. The duty nurse was contacted and no doctor came for twenty to twenty-five minutes; when two doctors arrived an oxygen cylinder was connected which, according to the complaint, was empty, and the patient died. A first information report was lodged and the doctors were prosecuted for causing death by a rash or negligent act. They asked to have the prosecution quashed.

Held. Among the conclusions the Court summed up: negligence is the breach of a duty caused by the omission to do something which a reasonable man would do or by doing something which a prudent and reasonable man would not do, and its essential components are three: duty, breach and resulting damage. Negligence in the medical profession calls for a treatment with a difference, so that an error of judgment or an accident is not negligence and a doctor who follows a practice acceptable to the profession of the day is not liable merely because a better course existed. In criminal law the degree must be gross or of a very high degree, and res ipsa loquitur is a rule of evidence in civil law with at most a limited application in a criminal trial.

Why it matters here. It is the Indian statement of the elements, and the chapters that follow are built on the three it names.

The two senses of the word

"Negligence" is used in two ways and confusing them costs marks.

As an independent tort, which is the subject of these chapters: duty, breach, damage.

As a mode of committing another tort, or as a state of mind. A trespass may be committed negligently, and "negligent" is used of the manner in which a nuisance is created or a bailee's duty is broken. In that sense negligence is an adjective, not a cause of action.

In one line

A defendant is liable in negligence only if the law says he owed this plaintiff a duty to take care, and a duty is not created merely because harm was foreseeable.

In the wording a student can write in an exam: a duty of care is a legal obligation to take reasonable care to avoid acts or omissions which one can reasonably foresee would be likely to injure one's neighbour, a neighbour being a person so closely and directly affected by the act that one ought reasonably to have him in contemplation; the modern approach asks in addition whether there is sufficient proximity between the parties and whether it is fair, just and reasonable to impose a duty, and the existence of a statutory power does not by itself create one.

Where the modern law begins

The general principle comes from Donoghue v. Stevenson, (1932) AC 562, which the Supreme Court of India cites by that reference in Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552.

Facts. A manufacturer's product reached an ultimate consumer, who was injured by its condition. There was no contract between the manufacturer and the consumer, which is why the claim could not be brought in contract. The Supreme Court recites the case in those terms in Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1.

Held. The manufacturer was liable to the ultimate consumer on the principle of a duty to take care. A duty in tort may therefore exist although there is no contract between the parties, which is the proposition the whole modern law of negligence is built on.

The formula that came out of that case is the neighbour principle: you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour, and your neighbour is a person so closely and directly affected by your act that you ought reasonably to have him in contemplation.

Why foreseeability alone is not enough

If everyone owed a duty to everyone who might foreseeably be harmed, liability would have no boundary. Courts have therefore added two further questions.

Proximity. Is there a sufficiently close and direct relationship between the parties? Physical closeness, a relationship of reliance, an assumption of responsibility and the directness of the harm all bear on it.

Fairness, justice and reasonableness. Is it fair, just and reasonable to impose a duty of this scope on this defendant for the benefit of this class of plaintiffs? This is where a court weighs the burden on public authorities, the risk of indeterminate liability, and the existence of other remedies.

In one line

Breach is failing to do what a reasonable person would have done, and the standard rises with the danger, the skill professed and the price charged.

In the wording a student can write in an exam: a duty of care is broken where the defendant fails to come up to the standard of the reasonable person, which is an objective standard measured by what a person of ordinary prudence would have done in the circumstances; the standard is fixed by the magnitude of the risk, the seriousness of the injury threatened, the utility of the defendant's conduct and the cost of precautions, it is raised where the defendant professes a special skill, and it is not lowered by the defendant's inexperience.

The reasonable person

The standard is that of the reasonable person: not the most cautious person imaginable and not the average person with all his failings, but a person of ordinary prudence in the defendant's position.

Three consequences follow, and each is examinable.

The standard is objective. A learner driver is judged by the standard of a competent driver, and inexperience is no excuse.

The standard takes account of the circumstances, not of the person. A doctor is judged as a doctor and a bus driver as a bus driver, but neither is judged by what he personally could manage.

Compliance with common practice is strong evidence but not conclusive. A practice may itself be careless, though a court will not readily say so.

The four factors that fix how much care is required

1. The magnitude of the risk, which is the likelihood of harm occurring. The more probable the harm, the more care is required.

2. The seriousness of the injury threatened. Where the possible harm is grave, more care is required even if the risk is small. A person carrying acid must take more care than a person carrying water, and a person known to be blind in one eye must be protected against a risk to the other.

3. The utility of the defendant's conduct. Some risks are worth taking. An ambulance driven fast to save a life is judged differently from a car driven fast for pleasure.

4. The cost and practicability of precautions. The law does not require a defendant to eliminate every risk regardless of expense; it requires precautions a reasonable person would take, weighing the risk against the burden.

The professional standard

A person who professes a special skill is judged by the standard of an ordinarily competent member of that profession. This is the Bolam standard, and the Supreme Court adopted it for India.

Facts. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, decided on 5 August 2005. A patient in a hospital at Ludhiana had difficulty in breathing at night; no doctor came for twenty to twenty-five minutes, and when two came the oxygen cylinder connected was, according to the complaint, empty. The patient died and the doctors were prosecuted for causing death by a rash or negligent act.

In one line

The plaintiff must show that the breach caused his damage and that the damage was not too remote a consequence of it.

In the wording a student can write in an exam: damage is the third essential of negligence, and it must be both caused by the breach and not too remote; causation is tested by asking whether the harm would have occurred but for the defendant's breach, subject to the rules on multiple causes and on a novus actus interveniens; remoteness limits liability to consequences of a kind that were reasonably foreseeable, which is the test of The Wagon Mound, preferred to the older test of direct consequences in Re Polemis.

Causation: the but-for test

Ask: would the harm have happened but for the defendant's breach? If it would have happened anyway, the breach did not cause it and the claim fails, however careless the defendant was.

Multiple causes. Where two causes each would have been sufficient, the but-for test breaks down and the courts ask instead whether the breach materially contributed to the harm.

Novus actus interveniens is Latin for a new act intervening. Where an independent act breaks the chain of causation, the defendant is not liable for what follows. The act must be truly independent: the intervention of a rescuer, of a doctor treating the injury, or of the plaintiff acting reasonably in the emergency the defendant created does not break the chain.

Remoteness: how far down the chain does liability run?

Every act has endless consequences. The law stops somewhere, and the two candidates for where are these.

The test of directness, associated with Re Polemis: a defendant is liable for all the direct consequences of his negligent act, whether or not they were foreseeable.

The test of reasonable foresight, associated with The Wagon Mound: a defendant is liable only for consequences of a kind that a reasonable person would have foreseen. This is the test now generally applied.

Two refinements matter.

The kind of harm, not its extent, must be foreseeable. If personal injury of some sort was foreseeable, it is no answer that the injury turned out far worse than expected.

The eggshell skull rule. A defendant takes his victim as he finds him. If a foreseeable blow causes far greater harm because the plaintiff has a thin skull, a weak heart or an unusual condition, the defendant is liable for the whole of it.

The Indian case decided on remoteness

Facts. Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552, decided on 17 January 1997. A pedestrian was killed when a roadside tree maintained by the Municipal Corporation fell on him. The trial court and the High Court held the Corporation liable on the footing that its power to maintain roadside trees carried an absolute duty to keep them safe.

In one line

Where an accident is of a kind that does not ordinarily happen if those in control take proper care, the accident itself is evidence of negligence.

In the wording a student can write in an exam: res ipsa loquitur means the thing speaks for itself; where the thing causing the damage was under the management or control of the defendant, and the accident is such as does not ordinarily happen if those who have such control use proper care, the accident itself affords reasonable evidence, in the absence of explanation by the defendant, that it arose from want of care; the maxim is a rule of evidence and not a rule of law, and it shifts the burden of explanation on to the defendant.

The three conditions

1. The thing causing the damage was under the defendant's control or management.

2. The accident is of a kind that does not ordinarily happen if proper care is used.

3. There is no explanation of how the accident happened, or the explanation offered is consistent with negligence.

Where the three are satisfied, the plaintiff may prove the accident and stop; it is then for the defendant to show that it happened without negligence on his part.

The Indian authority for what the maxim does

Facts. Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., AIR 1977 SC 1735, decided on 25 March 1977. A company's car, driven by its manager, left the road and struck a tree beyond the pavement so violently that the vehicle was badly damaged and its occupants killed. The dependants of a passenger claimed compensation. The company pleaded inevitable accident but led no evidence of how the accident happened.

Held. Where a car leaves the road and strikes a tree so violently, the maxim res ipsa loquitur applies. The general purport of the words is that the accident speaks for itself, or tells its own story: in such cases it is enough for the plaintiff to prove the accident and nothing more, and it is then for the defendant to establish that it happened from some cause other than his own negligence. Having pleaded inevitable accident and led no evidence, the company failed.

Why it matters here. It is the clearest Indian statement of what the maxim is for: it relieves the plaintiff of the hardship of proving how an accident happened when only the defendant can know.

The second Indian illustration

Facts. Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750. The Clock Tower in Chandni Chowk, owned by the Corporation, collapsed and killed three people. It was eighty years old, the mortar of its top storey had a life of forty to forty-five years, and the Corporation had never examined it for latent defects.

In one line

Contributory negligence is the plaintiff's own carelessness, which reduces his damages; composite negligence is the carelessness of two or more defendants, which gives the plaintiff the whole sum from any of them.

In the wording a student can write in an exam: contributory negligence is a want of reasonable care by the plaintiff for his own safety which contributes to the damage he suffers, and under the modern law it does not defeat the claim but reduces the damages in proportion to his share of the responsibility; composite negligence arises where the injury is caused by the negligence of two or more persons, and the liability of each to the injured person is joint and several, so that he may recover the whole amount from any one of them, apportionment being a matter between the wrongdoers.

Contributory negligence

What it is. The plaintiff failed to take the care a reasonable person would take for his own safety, and that failure contributed to his damage. He need owe no duty to anybody; the question is whether he looked after himself.

The old rule and the modern one. At common law contributory negligence was a complete defence, which produced harsh results, and it was mitigated by the last opportunity rule: the party who had the last opportunity of avoiding the accident was liable for the whole of it. The modern approach, which Indian courts apply and which the assessment of just compensation under section 168 of the Motor Vehicles Act 1988 requires, is apportionment: the court fixes the plaintiff's share of the responsibility as a percentage and reduces the damages by it.

The doctrine of alternative danger. A plaintiff who is put in a position of danger by the defendant's negligence, and takes a course that turns out badly, is not contributorily negligent if he acted reasonably in the agony of the moment.

Children and contributory negligence. A child is judged by the standard of a child of that age, and very young children are not capable of contributory negligence at all.

Composite negligence

What it is. Two or more persons are each negligent, and their combined negligence causes a single indivisible injury to the plaintiff.

Facts. Khenyei v. New India Assurance Co. Ltd, (2015) 9 SCC 273, decided on 7 May 2015. The claimant was injured in an accident caused by the composite negligence of the drivers of a trailer-truck and of a bus, and the question was whether he could recover the whole compensation from one of them and how liability was to be apportioned.

Held. In a case of composite negligence the liability of each wrongdoer to the claimant is joint and several. The claimant may recover the whole amount from any one of them, and he is not required to sue all of them or to have the liability apportioned between them before he is paid. Apportionment as between the tortfeasors is a matter for them, by contribution among themselves, and does not affect the claimant's right to full compensation from any one.

In one line

A doctor is judged by the standard of an ordinarily competent practitioner of his branch, and is not liable merely because the treatment failed or a better course existed.

In the wording a student can write in an exam: medical negligence is the breach by a medical professional of the duty to bring to his task a reasonable degree of skill and knowledge and to exercise a reasonable degree of care; the standard is that of the ordinary competent practitioner exercising and professing to have that special skill, which is the test in Bolam's case adopted for India in Jacob Mathew v. State of Punjab; an error of judgment or an accident is not negligence, and a practitioner who follows a practice acceptable to the profession of the day is not liable merely because a better alternative existed.

The duty a doctor owes

A doctor who accepts a patient owes three duties: a duty of care in deciding whether to take the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. A breach of any of them, causing damage, is actionable.

The standard: Bolam, as adopted in India

Facts. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, decided on 5 August 2005 by three judges. A patient in a hospital at Ludhiana had difficulty breathing at about eleven at night; no doctor came for twenty to twenty-five minutes, and when two arrived the oxygen cylinder connected was, on the complaint's version, empty. The patient died, and the doctors were prosecuted for causing death by a rash or negligent act.

Held. The Court summed up its conclusions. Negligence has three components: duty, breach and resulting damage. Professional negligence calls for a treatment with a difference: a simple lack of care, an error of judgment or an accident is not proof of negligence, and so long as a doctor follows a practice acceptable to the medical profession of the day he cannot be held liable merely because a better alternative course was available or because a more skilled doctor would not have followed that course; what has to be seen is whether the precautions were taken which the ordinary experience of men has found to be sufficient. For criminal liability the negligence must be gross or of a very high degree and mens rea must be shown. Res ipsa loquitur is a rule of evidence in civil law with at most a limited application in a criminal trial. The Court also laid down guidelines for prosecuting doctors: a private complaint should not be entertained unless supported by a credible opinion from another competent doctor, and an investigating officer should obtain an independent and competent medical opinion before proceeding.

In one line

Nervous shock is a claim for a recognisable psychiatric injury caused by what the plaintiff saw, heard or feared, without any physical impact on him.

In the wording a student can write in an exam: nervous shock is the term used for a claim in negligence for psychiatric injury caused otherwise than by physical impact; the plaintiff must prove a recognisable psychiatric illness and not merely grief, fright or distress; a primary victim, who was himself within the range of foreseeable physical injury, recovers if injury of some kind was foreseeable, while a secondary victim, who suffers through what happened to another, must in addition show a close tie of love and affection with the person endangered, closeness in time and space to the event or its immediate aftermath, and that the shock came through his own sight or hearing of it.

Why the law was reluctant

Three reasons were given for refusing such claims, and all three still shape the rules.

Proof. An injury that leaves no mark is harder to prove and easier to fabricate.

Floodgates. One accident may be witnessed by hundreds, and every one of them might sue.

Where to stop. Grief at a death is universal, and if grief were compensable the law would be compensating an ordinary incident of life.

The law's answer to all three is the requirement of a recognisable psychiatric illness: a medically identified condition, diagnosed by evidence, and not sorrow, fright or anxiety however genuine.

How the law developed

Stage one. The earliest decisions refused a claim for shock unaccompanied by physical impact at all.

Stage two. Recovery was allowed where the plaintiff had reasonably feared for his own safety, that is, where he was himself in the zone of danger.

Stage three. Recovery was extended to a plaintiff who feared for the safety of a close relative and witnessed the event.

Stage four. The modern control mechanisms were settled for secondary victims: a close tie of love and affection, proximity in time and space to the accident or its immediate aftermath, and perception by the plaintiff's own unaided senses rather than by being told about it.

Primary and secondary victims

The "immediate aftermath" is the boundary that produces most of the litigation: a parent who reaches the hospital while the injuries are still untended may be within it, and one who is told by telephone the next day is not.

In one line

Deceit is telling somebody a lie, knowing it to be false, so that he acts on it and loses by it.

In the wording a student can write in an exam: the tort of deceit is committed where the defendant makes a false representation of fact, knowing it to be false, or without belief in its truth, or recklessly not caring whether it be true or false, with the intention that the plaintiff should act on it, and the plaintiff does act on it and suffers damage; an honest belief in the truth of the statement, however unreasonable, is a complete defence, which is what separates deceit from negligent misstatement.

The five essentials

1. A representation of fact. A statement of existing fact, made by words or by conduct. A statement of opinion, of intention or of law is not ordinarily a representation of fact, though a statement of opinion may imply that the maker holds it, and a statement of intention may imply that he has it.

2. Falsity. The representation must be untrue. Silence is ordinarily not a representation, but there are three exceptions: where a half-truth misleads, where a statement true when made becomes false before it is acted on and is not corrected, and where the relationship is one requiring disclosure.

3. Knowledge of the falsity, or recklessness. The representation must be made knowingly, or without belief in its truth, or recklessly without caring whether it is true or false. This is the mental element that gives the tort its name and it is the whole of the difference between deceit and negligence.

4. Intention that the plaintiff act on it. The maker must have intended that the plaintiff, or a class including him, should act on the representation.

5. The plaintiff acted on it and suffered damage. Damage is essential; deceit is not actionable per se.

Honest belief is a complete defence

This is the proposition to state first in any answer.

A person who believes what he says is not liable in deceit, however careless he was in coming to that belief and however unreasonable the belief is. If his want of care caused loss to somebody who relied on him, the claim lies, if at all, in negligence and not in deceit. That is why an honest but stupid director escapes deceit while a knowing one does not.

Fraud in the Indian Contract Act 1872

Section 17 defines fraud, for the purposes of contract, as including the suggestion as a fact of that which is not true by one who does not believe it to be true; the active concealment of a fact by one having knowledge or belief of the fact; a promise made without any intention of performing it; any other act fitted to deceive; and any such act or omission as the law specially declares to be fraudulent. It adds that mere silence is not fraud unless the circumstances are such that it is the duty of the person keeping silence to speak, or unless his silence is in itself equivalent to speech.

In one line

Where two or more people are responsible for the same damage, the injured person may recover the whole of it from any one of them.

In the wording a student can write in an exam: persons are joint tortfeasors where they act in furtherance of a common design, where one is vicariously liable for the tort of the other, or where they breach a joint duty; their liability to the plaintiff is joint and several, so that he may sue any one or all of them and recover the whole of his damages from any one, subject to satisfaction only once, and the rule preventing contribution between wrongdoers has been abandoned so that a tortfeasor who pays may recover a share from the others.

Who is a joint tortfeasor

Agency and vicarious liability. A master and his servant, a principal and his agent, and partners in a firm, where the wrong is committed in the course of the employment, agency or business.

Common design. Two or more persons acting in concert in pursuance of a common purpose, so that the act of one is the act of all.

Breach of a joint duty. Where two persons owe a duty together and both fail, for example joint owners of a building that collapses.

Joint against independent tortfeasors, and composite negligence

Composite negligence is the Indian expression for the second situation where the injury is indivisible, and the leading authority is Indian.

Facts. Khenyei v. New India Assurance Co. Ltd, (2015) 9 SCC 273, decided on 7 May 2015. A claimant was injured in an accident caused by the composite negligence of the drivers of a trailer-truck and of a bus. The question was whether the whole compensation could be recovered from one of them and how liability should be apportioned.

Held. In composite negligence the liability of each wrongdoer to the claimant is joint and several. The claimant may recover the whole amount from any one of them, and he is not required to sue all of them or to have the liability apportioned between them first. Apportionment as between the tortfeasors is a matter for them, by contribution among themselves, and does not affect the claimant's right to full compensation from any one.

Why it matters here. It is the practical rule that decides how a Claims Tribunal proceeds under section 168 of the Motor Vehicles Act 1988 when two vehicles are to blame, and it protects the claimant from being made to litigate the drivers' quarrel.

In one line

Malicious prosecution is setting the criminal law in motion against somebody maliciously and without reasonable cause, when the prosecution ends in his favour and damages him.

In the wording a student can write in an exam: the tort of malicious prosecution is committed where the defendant prosecuted the plaintiff, the prosecution ended in the plaintiff's favour, the defendant acted without reasonable and probable cause, he acted maliciously, and the plaintiff suffered damage to his reputation, his person or his property; the burden of proving all five, including the absence of reasonable and probable cause, lies on the plaintiff.

The five ingredients

1. The defendant prosecuted the plaintiff. To prosecute is to set the law in motion against another on a criminal charge. A person who merely gives information to the police honestly, leaving the police to decide, is not a prosecutor; a person who files a complaint, or who procures the prosecution by pressing false information, is.

2. The prosecution ended in the plaintiff's favour. An acquittal, a discharge, a withdrawal, or a quashing will do. The plaintiff need not prove his innocence, only that the proceeding terminated in his favour; and while it is pending, no action lies at all, which is why article 74 of the Schedule to the Limitation Act 1963 runs the period of one year from the acquittal or other termination.

3. Absence of reasonable and probable cause. This means an honest belief, founded on reasonable grounds, in the existence of a state of circumstances which would lead an ordinarily prudent and cautious person to conclude that the plaintiff was probably guilty. The plaintiff must prove that the defendant had no such cause, which is proof of a negative and is the hardest part of the case.

4. Malice. Malice here means any improper motive, that is, a purpose other than the desire to bring an offender to justice. Spite is malice, and so is the wish to extort money, to gain a collateral advantage, or to silence a rival. Malice may be inferred from the absence of reasonable and probable cause, but the absence of cause cannot be inferred from malice.

5. Damage. The plaintiff must have suffered damage to his reputation, to his person by arrest or imprisonment, or to his property by the expense of defending himself.

Why the tort is kept narrow

The law wants offences reported. If every acquitted accused could sue the complainant, nobody would report a crime. The five ingredients, and particularly the requirement that the plaintiff prove the absence of reasonable and probable cause, exist to keep the balance.

The Indian case, and the discipline it enforces

Facts. West Bengal State Electricity Board v. Dilip Kumar Ray, (2007) 14 SCC 568, decided on 24 November 2006. An employee sued the Board for damages. The trial court held that he was not entitled to damages for defamation but awarded damages for harassment, and the High Court affirmed, reading that award as damages for malicious prosecution causing harassment. There was no specific pleading of malicious prosecution, no issue framed on it, and no evidence led to establish it.

In one line

Abuse of process is using a genuine legal process for a purpose it was never meant to serve, and it is a wrong even if the process was properly issued.

In the wording a student can write in an exam: a malicious abuse of legal process consists in the malicious misuse or misapplication of process to accomplish a purpose not warranted or commanded by the order of the court, that is, the malicious perversion of a regularly issued process whereby an improper result is secured; it is distinct from a malicious use of process, such as malicious prosecution or malicious civil proceedings, where the complaint is that the process was set in motion without cause, because in abuse the process may have been regularly obtained and the wrong lies in the purpose for which it is employed.

The Supreme Court's own distinction

Facts. West Bengal State Electricity Board v. Dilip Kumar Ray, (2007) 14 SCC 568, decided on 24 November 2006. An employee sued the Board for damages; the trial court refused damages for defamation but awarded them for harassment, and the High Court affirmed, treating that award as damages for malicious prosecution causing harassment. Malicious prosecution had not been pleaded, no issue was framed on it, and no evidence was led about it.

Held. The appeal was allowed and the decree set aside, because a tort must be pleaded, put in issue and proved, and conclusions resting on surmises cannot support a decree. In the course of the judgment the Court set out the vocabulary of the group: malicious prosecution requires proceedings instituted maliciously and without reasonable and probable cause; a malicious abuse of legal process consists in the malicious misuse or misapplication of process to accomplish a purpose not warranted or commanded by the order of the court, the malicious perversion of a regularly issued process whereby an improper result is secured; and there is a distinction between a malicious use and a malicious abuse of legal process, an abuse being where the party employs the process for some unlawful object, not the purpose for which it was intended.

Why it matters here. It is the Indian statement of the distinction the syllabus asks about, and it comes from the Supreme Court rather than from a textbook.

The three wrongs in this family

Malicious prosecution, which chapter [Malicious Prosecution] works out: setting the criminal law in motion maliciously and without reasonable and probable cause.

Malicious civil proceedings. In general a person may use any form of legal process without liability beyond the costs if he fails, because civil litigation is not ordinarily damaging in itself. An action lies, however, where a particular kind of civil proceeding is initiated maliciously and without reasonable and probable cause and causes damage: the standard examples are a bankruptcy or winding-up petition, an unfounded claim to property, and a malicious arrest or attachment before judgment. The reason for the exception is that these proceedings damage a person's credit or property by their mere existence.

In one line

Vicarious liability makes one person answerable for a tort committed by another because of the relationship between them.

In the wording a student can write in an exam: vicarious liability is the liability of one person for the tort of another, arising not from any fault of his own but from the relationship between them; its basis is expressed in the maxims qui facit per alium facit per se, he who acts through another acts himself, and respondeat superior, let the superior answer; it requires a relationship the law recognises, a tort committed by the person for whom liability is imposed, and a connection between the tort and that relationship, ordinarily that it was committed in the course of employment.

The two maxims

Qui facit per alium facit per se means "he who acts through another acts himself". It expresses the idea that a person who gets his work done by another is doing it himself, so the law treats the other's wrongs in that work as his.

Respondeat superior means "let the superior answer". It expresses the idea that the person in the position of authority, and of means, should answer.

The three requirements

1. A relationship the law recognises. Master and servant is the principal one; principal and agent, partners, and in some circumstances a person who lends his servant or his vehicle, are others. Chapters [Who Is a Servant] and [Other Relations that Attract Vicarious Liability] work them out.

2. A tort committed by the other person. There must be a wrong for which the servant himself would be liable. Vicarious liability is not a separate tort.

3. A connection between the tort and the relationship. For a servant that connection is the course of employment, which chapter [Course of Employment] works out.

Why the law does this: the justifications

This is the part of the topic MU prints in terms, and it is what turns a definition into an answer.

Control. The master chooses the servant, directs the work and can stop it. A person who has that power should answer for how it is used.

Benefit. The work is done for the master's benefit, and it is fair that the person who takes the profit of an activity should take its losses. This is sometimes put as: the risk is a cost of the enterprise.

Loss distribution and the deep pocket. The master can insure, and can pass the cost into his prices; the injured person can do neither. Chapter [The Object of the Law of Torts] shows how this reflects the loss-distribution object.

Deterrence. A master who bears the cost of his servants' wrongs will select and supervise them better.

In one line

A servant works under a contract of service and is subject to the employer's control; an independent contractor works under a contract for services and decides how the work is done.

In the wording a student can write in an exam: a servant is a person employed by another to do work under a contract of service, in which the employer has the right to control not only what work is done but the manner of doing it, while an independent contractor works under a contract for services and is bound only to produce a result, choosing the method himself; the traditional test is the control test, which is supplemented by the organisation or integration test and by the modern multiple test, and the distinction matters because a master is liable for the torts of his servant in the course of employment while an employer is ordinarily not liable for the torts of an independent contractor.

The three tests

1. The control test. Does the employer have the right to control not merely what is done but how it is done? This works well for a driver or a factory hand and badly for a surgeon or a pilot, whom no hospital or airline can tell how to operate or to fly.

2. The organisation or integration test. Is the work done as an integral part of the business, or is it merely accessory to it? A staff surgeon is part of the hospital; a visiting consultant who brings his own team may not be.

3. The multiple test. The modern approach weighs everything: who provides the tools and premises, who bears the financial risk, how payment is made, whether the person may work for others, whether he may send a substitute, and the description the parties themselves give. No single factor decides.

Say in an answer that the control test survives as the starting point and that the courts now look at the whole relationship, because that is the accurate position and it is what a good answer shows.

Why the distinction matters

A master is liable for a servant's tort committed in the course of employment. An employer is ordinarily not liable for the tort of an independent contractor, subject to the exceptions in chapter [Liability for an Independent Contractor].

The lent servant, and the presumption about vehicles

Where A's servant is lent to B, the question is who had the right to control the manner of doing the work at the moment of the tort. The burden of shifting liability from the general employer to the temporary one is heavy, and it is not discharged merely by showing that the temporary employer told the servant what to do.

In one line

A master answers for what his servant does wrongly while doing the master's work, and not for what the servant does on his own account.

In the wording a student can write in an exam: an act is done in the course of employment where it is a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing some act authorised by the master; the master is therefore liable for careless, mistaken, excessive or even forbidden ways of doing the job, and is not liable where the servant has stepped outside the employment altogether and is on a frolic of his own.

The formula, and where it comes from

Facts. Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697, decided on 8 February 1966. The owner of a taxi entrusted it to a driver who collected the fares and accounted to him. The cleaner was trained to drive by that driver and, while taking a driving test with the driver absent from the vehicle, injured the respondent.

Held. The owner was not liable. The presumption that a vehicle is driven on the master's business by his authorised servant was rebutted: the owner had not employed or permitted the cleaner to drive, had not asked him to take a test, and had not authorised the driver to employ strangers, and the driver was not present to control the vehicle on the owner's behalf. For the master's liability to arise the act must be a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing some act authorised by the master.

Why it matters here. It is the formula, stated by the Supreme Court, and every situation below is an application of it.

The situations, in the order examiners set them

1. A careless way of doing the job. A driver who drives too fast on his round is doing authorised work in an unauthorised way. The master is liable.

2. A mistaken way of doing the job. A servant who acts on an honest mistake while doing his work, for example a railway porter who pulls a passenger off a moving train believing him to be on the wrong one, is still doing the work. The master is liable.

3. An excessive way of doing the job. A servant who uses more force than the job requires, for example a bouncer who ejects a customer violently, is still doing the job. The master is liable.

4. A forbidden way of doing the job. A prohibition on the mode of doing the work does not take the act outside the employment; a prohibition on the sphere of the work does. A driver told not to race is still employed to drive; a driver told never to carry passengers who carries one may still be within the employment if the carriage was for the master's purposes.

In one line

An employer is not liable for the torts of an independent contractor, except where the duty he owes cannot be delegated.

In the wording a student can write in an exam: the general rule is that a person who employs an independent contractor is not liable for torts committed by the contractor or his servants in the execution of the work, because the contractor is not under his control as to the manner of doing it; the exceptions are where the employer authorises or ratifies the wrong, where he is himself negligent in selecting the contractor or in giving directions, where the work is extra-hazardous, where it involves a withdrawal of support or interference with a highway, where the duty is a statutory or a common law duty which cannot be delegated, and where the liability is strict or absolute.

The general rule and its reason

The reason follows from chapter [Who Is a Servant]. Vicarious liability rests on control of the manner of the work, and an employer of an independent contractor has none: he specifies a result and leaves the method to a person who is in business on his own account.

The consequence is that the injured person's remedy is against the contractor. Where the contractor is not worth suing, the plaintiff will try to bring the case within one of the exceptions, and that is what most litigation on this topic is about.

The exceptions

1. Authorisation or ratification. Where the employer authorised the very act complained of, or adopted it afterwards, he is liable as a joint tortfeasor and not vicariously at all.

2. The employer's own negligence. Choosing a contractor known to be incompetent, giving him defective plans or instructions, or failing to check work he was bound to check, is the employer's own breach.

3. Extra-hazardous work. Where the work carries a special risk of danger to others, for example blasting, demolition or work with fire near neighbouring property, the employer cannot escape by employing a contractor.

4. Withdrawal of support and works on a highway. Excavations that remove support from a neighbour's land, and works that create a danger on a highway, engage a duty of the employer himself.

5. Non-delegable duties. Some duties are personal: the employer must see that care is taken, not merely take care to arrange for it. Examples are the duty of an employer to provide a safe system of work, the duty of an occupier towards visitors in certain circumstances, and duties imposed by statute in terms that make the person on whom they lie answerable however the work is done.

6. Strict and absolute liability. Where liability does not depend on fault at all, the employment of a contractor is beside the point. The rule in Rylands v. Fletcher attaches to the person who brings the dangerous thing on to the land, and it was in Rylands v. Fletcher itself that independent contractors did the work and the defendants were still liable.

In one line

Besides master and servant, vicarious liability arises between principal and agent, between partners, and where an owner casually entrusts a dangerous thing to somebody to do his work.

In the wording a student can write in an exam: the relations that attract vicarious liability are master and servant, principal and agent, partners in a firm, a company and those through whom it acts, and, in India, an owner who entrusts his vehicle to another to be driven for his purposes, which is called casual delegation; the common element is that the wrongdoer was doing the defendant's work with his authority, express or implied.

Principal and agent

Section 182 of the Indian Contract Act 1872 defines an agent as a person employed to do any act for another or to represent another in dealings with third persons, and the person for whom the act is done is the principal.

Section 188 provides that an agent having authority to do an act has authority to do every lawful thing necessary in order to do it, and that an agent authorised to carry on a business has authority to do every lawful thing necessary for that purpose or usually done in the course of conducting it.

Section 238 provides that misrepresentations made, or frauds committed, by agents acting in the course of their business for their principals have the same effect on agreements made by such agents as if the misrepresentations or frauds had been made or committed by the principals; but misrepresentations or frauds which do not fall within their authority do not affect their principals.

The tort rule matches. A principal is liable for a tort committed by his agent within the scope of the authority conferred, whether that authority is express, implied or apparent, and the test of scope is the same idea as the course of employment in chapter [Course of Employment].

Partners

Partners are agents of the firm and of one another for the purposes of the business, so a tort committed by one partner in the ordinary course of the business makes all of them liable, jointly and severally, and the firm's property answers as well.

Companies

A company acts through people. It is liable for the torts of its servants and agents in the ordinary way, and in addition the acts of those who are its directing mind are treated as its own acts rather than as somebody else's for which it is vicariously liable.

Casual delegation, and the owner of a vehicle

This is the Indian branch that matters most in practice, because it is how the owner of a car is made liable for the driving of a friend or a relative.

In one line

The State is liable for the torts of its servants to the same extent as the East India Company was, and the old sovereign and non-sovereign division has been cut down almost to nothing.

In the wording a student can write in an exam: article 300(1) of the Constitution provides that the Union and the States may sue and be sued in the like cases as the Dominion of India and the corresponding Provinces might have sued or been sued if the Constitution had not been enacted, so the extent of the State's liability is that of the East India Company as settled in the P. and O. Steam Navigation case, which distinguished sovereign from non-sovereign functions; State of Rajasthan v. Vidhyawati held the State liable like any other employer, Kasturilal Ralia Ram Jain v. State of Uttar Pradesh denied liability for an exercise of sovereign power, and N. Nagendra Rao and Co. v. State of Andhra Pradesh held that the doctrine of sovereign immunity has no place in a modern welfare State.

The provision

Article 300(1) provides that the Government of India may sue and be sued by the name of the Union of India, and the Government of a State by the name of the State, and may, subject to any provisions made by Parliament or a State Legislature, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or Indian States might have sued or been sued if this Constitution had not been enacted.

Three things follow.

The State can be sued. There is no general immunity in India.

The extent is historical. The words "in like cases" send the court back through the Government of India Acts to the liability of the East India Company.

Parliament may change it. No Act has been passed, and N. Nagendra Rao records that a Bill introduced in 1965 was withdrawn, reintroduced in 1967 and lapsed.

Article 294 deals with the succession to property and liabilities, article 299 with the form of government contracts, and article 361 with the personal immunity of the President and Governors, which chapter [Who May Not Be Sued] takes.

The four cases, in order

One: the East India Company case. The P. and O. Steam Navigation case, decided by the Supreme Court of Calcutta in 1861, drew the line the whole subject still uses: the Company was liable for acts done in the conduct of undertakings which might be carried on by a private person, and not for acts done in the exercise of powers which could only be exercised by a sovereign. The Supreme Court approved it in Kasturilal.

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A constitutional court may order the State to pay compensation for violating a fundamental right, and sovereign immunity is no answer to it.

In the wording a student can write in an exam: a constitutional tort is the violation of a fundamental right by the State or its officers, for which the Supreme Court under article 32 and the High Courts under article 226 may award compensation as a public law remedy; the remedy is distinct from and additional to the private law action in tort, it is granted summarily in a writ petition without a suit, the defence of sovereign immunity does not apply to it, and it is available to every person and not only to citizens.

How the remedy was made

Facts. Rudul Sah v. State of Bihar, AIR 1983 SC 1086, decided on 1 August 1983. Rudul Sah was acquitted by the Court of Sessions at Muzaffarpur on 3 June 1968 and was kept in jail until 16 October 1982, more than fourteen years after his acquittal. He petitioned under article 32 for release and for compensation.

Held. He had been released before the hearing, so the prayer for release did not survive. The Court held that its power under article 32 is not confined to issuing a writ of release, and that it may award compensation where the right to liberty has been grossly violated, because otherwise the right would be reduced to a paper guarantee. It directed the State to pay Rs. 30,000 in addition to a sum already paid, described the award as a palliative, and left him free to sue for damages in the ordinary way.

Why it matters here. It is the origin. Everything that follows is an application of the reasoning that a right without an effective remedy is not a right, which chapter [Ubi Jus Ibi Remedium] states as a maxim.

Facts. Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, decided on 22 November 1985. A member of the Legislative Assembly was arrested at three in the morning while travelling to attend a session and was kept in custody from the tenth to the fourteenth of September without being produced before the Executive Magistrate on the eleventh or the Sub Judge on the thirteenth, remand orders having been obtained at their residences after office hours.

Held. The police had acted deliberately and mala fide, and there was a gross violation of articles 21 and 22(2). Since he was already at liberty no order of release was needed, but the Court held that it had jurisdiction to compensate the victim by awarding monetary compensation, and directed the State to pay Rs. 50,000.

In one line

A person who brings a dangerous thing on to his land for his own purposes must keep it there at his peril, and is liable if it escapes and does damage, however careful he was.

In the wording a student can write in an exam: the rule in Rylands v. Fletcher is that a person who for his own purposes brings on to 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 fails to do so is prima facie liable for the damage which is the natural consequence of its escape; liability is strict, so it is no defence that the escape occurred without his wilful act, default or neglect, or even that he did not know the thing was there, and the rule applies only to a non-natural use of the land.

The rule, as the Supreme Court of India states it

Facts. Rylands v. Fletcher, Law Report 1 Exchequer 265 (1866), as the citation is given by the Supreme Court in M.C. Mehta v. Union of India, AIR 1987 SC 1086. The defendants employed independent contractors to build a reservoir on their land. The contractors came upon disused mine shafts which they did not block, and when the reservoir was filled the water escaped down the shafts and flooded the plaintiff's coal mine. The defendants themselves were not negligent.

Held. A person who for his own purposes brings on to 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 fails to do so is prima facie liable for the damage which is the natural consequence of its escape. The liability is strict: it is no defence that the thing escaped without the defendant's wilful act, default or neglect, or that he had no knowledge of its existence. The rule applies only to a non-natural user of the land, and does not apply where the escape is due to an act of God or of a stranger, or to the default of the person injured, or where the thing is present with that person's consent, or in certain cases of statutory authority.

Why it matters here. Everything in this chapter and the next comes from that statement, and it is an Indian court's statement of an English rule, which is exactly what chapter [Tort in India] says the position is.

The three essentials

1. A dangerous thing. Something likely to do mischief if it escapes. Water, gas, electricity, fire, explosives, poisonous fumes, sewage, chemicals, and even things not dangerous in themselves if they are dangerous in the quantity or the place in which they are kept.

In one line

Six things defeat the rule in Rylands v. Fletcher, and none of them defeats absolute liability in India.

In the wording a student can write in an exam: the recognised exceptions to the rule in Rylands v. Fletcher are the plaintiff's own default, the plaintiff's consent, common benefit, the act of a stranger, an act of God, and statutory authority; the Supreme Court set out those exceptions in M.C. Mehta v. Union of India and then held that an enterprise carrying on a hazardous or inherently dangerous activity in India cannot rely on any of them.

The six exceptions

1. Plaintiff's own default. Where the escape is due to the plaintiff's own act, or where his own unusual conduct or unusually sensitive property brings the damage on himself, no action lies. The point is the same as the sensitivity rule in nuisance in chapter [Private Nuisance].

2. Consent of the plaintiff. Where the plaintiff has expressly or impliedly consented to the presence of the source of danger, and there is no negligence, he cannot complain. A tenant who takes a flat below a water tank installed for the benefit of the whole building has consented to the tank being there.

3. Common benefit. Where the thing is kept for the benefit of both the plaintiff and the defendant, the rule does not apply. This overlaps with consent, and it explains why the ordinary water and drainage installations of a building are outside the rule.

4. Act of a stranger. Where the escape is caused by the deliberate and unforeseeable act of a person over whom the defendant has no control, the defendant is not liable. The stranger must be a stranger: an act by the defendant's servant or by an independent contractor doing his work is not within the exception.

5. Act of God. Where the escape is caused by natural forces without human intervention, in circumstances so extraordinary that no human foresight could reasonably provide against them. Chapter [General Defences I] works out the limits, and Ramalinga Nadar v. Narayana Reddiar, AIR 1971 Ker 197, fixes the boundary: the acts of an unruly mob are not an act of God, because the expression covers only inevitable accidents caused by the elementary forces of nature unconnected with the agency of man.

6. Statutory authority. Where the thing is kept, or the activity carried on, under the authority of a statute, the rule may be displaced. Whether it is depends on the terms of the statute, and chapter [General Defences II] sets out the distinction between absolute and conditional authority. Statutory authority never authorises negligence.

In one line

An enterprise that carries on a hazardous activity is liable for the harm an accident in it causes, with no exceptions and no excuse of care taken.

In the wording a student can write in an exam: the rule of absolute liability laid down in M.C. Mehta v. Union of India is that an enterprise engaged in a hazardous or inherently dangerous activity which poses a potential threat to the health and safety of persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results, and if harm results it is absolutely liable to compensate all those affected, it being no answer that it took all reasonable care and that the harm occurred without negligence on its part; the liability is not subject to any of the exceptions to the rule in Rylands v. Fletcher, and the measure of compensation must be related to the magnitude and capacity of the enterprise so that it has a deterrent effect.

The case

Facts. M.C. Mehta v. Union of India, AIR 1987 SC 1086, decided on 20 December 1986. Oleum gas escaped from one of the units of Shriram Foods and Fertiliser Industries in a densely populated part of Delhi. Applications for compensation were made in a public interest petition already pending about the same plant. The Court had to decide the measure of liability of an enterprise carrying on a hazardous or inherently dangerous industry when an accident in it kills or injures people, and in particular whether the rule in Rylands v. Fletcher applied.

Held. The Court set out the rule in Rylands v. Fletcher, its requirement of a non-natural use and its exceptions, and then declined to apply it. A rule evolved in the nineteenth century, before these developments of science and technology, could not guide a modern economy; law has to grow to meet new situations; and Indian courts cannot allow their judicial thinking to be constricted by the law as it prevails in England or in any other foreign country, since India no longer needs the crutches of a foreign legal order. It then laid down four propositions.

One. An enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone.

Two. The enterprise must conduct the activity with the highest standards of safety, and if any harm results it is absolutely liable to compensate, and it is no answer that it took all reasonable care and that the harm occurred without any negligence on its part.

Three. The liability is not subject to any of the exceptions which operate against the rule of strict liability in Rylands v. Fletcher.

In one line

The worst industrial accident in history produced a special Act giving the Government the exclusive right to sue, a settlement of 470 million dollars, and a judgment restoring the criminal case that had been quashed.

In the wording a student can write in an exam: after the escape of methyl isocyanate gas from the Union Carbide plant at Bhopal in December 1984, Parliament passed the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985 giving the Union Government the exclusive right to represent the victims; its validity was upheld in Charan Lal Sahu v. Union of India on the doctrine of parens patriae; the claims were settled in February 1989 for 470 million United States dollars and the pending criminal proceedings were quashed; and in Union Carbide Corporation v. Union of India the Supreme Court upheld the settlement but held that the quashing of the criminal proceedings was not justified and restored them.

What happened

In the night of 2 and 3 December 1984, methyl isocyanate gas escaped from the plant of Union Carbide India Limited at Bhopal. Thousands of people died and many more were injured, and the injuries continued to appear for years. The scale of the disaster made ordinary litigation impossible: the victims were poor, disorganised and largely illiterate, and the defendant was a multinational corporation with its parent abroad.

The statute, and the case that upheld it

Parliament passed the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985, which gave the Union Government the exclusive right to represent every victim in every claim arising out of the disaster, in India and abroad, and to compromise those claims.

Facts. Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, decided on 22 December 1989 by five judges. The constitutional validity of the Act was challenged, principally on the ground that it took away the victims' own right to sue and to be heard.

Held. The Act was upheld. The Court applied the doctrine of parens patriae, the obligation of the State to protect and take into custody the rights of citizens who are unable to protect themselves, and held that the victims of the disaster were exactly such a class. It read into the Act a requirement of notice and an opportunity of being heard for the victims where a settlement is proposed, and held that the State was under an obligation to see that the victims were compensated even if the company could not pay.

Why it matters here. It is the Indian authority on parens patriae, and chapter [Who May Sue] uses it for the proposition that somebody other than the injured person may sue on their behalf.

In one line

The Act makes the owner of a hazardous substance pay immediate relief for an accident without any proof of fault, and compels him to insure so that the money is there.

In the wording a student can write in an exam: the Public Liability Insurance Act 1991 provides for public liability insurance for the purpose of giving immediate relief to persons affected by an accident occurring while handling any hazardous substance; section 3 imposes liability on the owner on the principle of no fault, section 4 obliges him to take out insurance before he begins handling the substance, section 7A establishes the Environmental Relief Fund, and the relief is awarded by the Collector under section 7 on an application made under section 6.

Why the Act exists

The Bhopal disaster showed two gaps. A victim who must prove fault gets nothing for years, and a defendant may have no money when judgment is finally given. The Act answers both: liability without fault, and compulsory insurance to back it.

The Act gives immediate relief, not full compensation. Section 8 preserves every other right, and chapter [Absolute Liability] supplies the larger claim.

The Act, section by section

Sections 1 and 2: title, commencement and definitions. The Act came into force on 1 April 1991. Section 2 defines "handling", "hazardous substance", "owner" and the other working words, and expressions defined in the Transfer of Property Act 1882 and the Environment (Protection) Act 1986 carry their meanings from those Acts.

Section 3: liability on the principle of no fault. Where death or injury to any person, other than a workman, or damage to any property has resulted from an accident, the owner is liable to reimburse such amount or provide such other relief as may be prescribed, for death due to a fatal accident, medical expenses for total or partial disability, loss of wages due to partial disability, other injury or sickness, damage to private property, and such other loss as may be prescribed. Sub-section (2) is the heart of the Act: in a claim for relief the claimant is not required to plead and establish that the death, injury or damage was due to any wrongful act, neglect or default of any person. The Explanation adopts the meaning of "workman" from the Workmen's Compensation Act 1923 and provides that "injury" includes permanent total or partial disability or sickness resulting from an accident.

Section 4: duty to insure. Every owner must take out one or more insurance policies before he starts handling any hazardous substance, insuring him against the liability under section 3, and must renew them so that cover continues throughout. Sub-section (2A) requires the policy to be for not less than the paid-up capital of the undertaking, and it may extend to such amount as may be prescribed but not exceeding five hundred crore rupees; for an owner who is not a company, paid-up capital means the market value of all assets and stocks. Sub-section (2C) requires the owner to pay, along with the premium, a further amount not exceeding the premium for credit to the Relief Fund, and sub-section (2D) requires the insurer to remit it, failing which it is recoverable as arrears of land revenue. Sub-section (3) allows the Central Government to exempt the Central Government, a State Government, a Government corporation or a local authority, but only where that owner maintains a fund of its own for meeting the liability.

In one line

Damages are money awarded to put the injured person, so far as money can, in the position he would have been in if the wrong had not happened.

In the wording a student can write in an exam: damages are the principal judicial remedy in tort, and the governing principle is restitutio in integrum, restoration to the original position so far as money can achieve it; damages are unliquidated, that is, assessed by the court and not fixed in advance; they are classified as nominal, contemptuous, ordinary or compensatory, aggravated and exemplary; and they are divided for pleading into special damages, which must be specifically pleaded and proved, and general damages, which the law presumes.

The governing principle

Restitutio in integrum means restoration to the original position. The court asks what the plaintiff has lost and awards a sum that represents it.

The principle is a ceiling as well as a floor. The plaintiff is not to profit from the wrong, so a claimant whose damaged car is replaced with a new one gives credit for the improvement, and a claimant who has been paid by an insurer does not recover twice.

Special and general damages

Special damages are the items of loss that can be calculated exactly at the date of the suit: medical bills, the cost of repairs, wages actually lost. They must be specifically pleaded and strictly proved.

General damages are the items the law presumes and the court estimates: pain and suffering, loss of amenities, loss of future earnings, injury to reputation. They need not be pleaded item by item.

Do not confuse "special damages" in this sense with the "special damage" a plaintiff must prove in slander and in public nuisance, which means damage particular to him. The same words carry two different meanings, and chapters [Libel and Slander] and [Public Nuisance] use the second.

How a court arrives at a figure

For damage to property, the cost of repair, or the diminution in value where repair is impossible, plus consequential loss such as the cost of hiring a replacement.

For personal injury, the medical expenses actually and prospectively incurred, the loss of earnings to date, the loss of future earning capacity, and general damages for pain, suffering and loss of amenities.

For death, the dependency, that is, what the dependants have lost, plus conventional heads. Chapter [Computing Just Compensation] works out the multiplier method the Motor Vehicles Act cases use.

In statutory claims, the statute may direct the exercise. Section 168 of the Motor Vehicles Act 1988 requires the Claims Tribunal to hold an inquiry and make an award determining the amount of compensation which appears to it to be just, and section 39 of the Consumer Protection Act 2019 lists the reliefs a Consumer Commission may order, including compensation for loss or injury suffered by a consumer due to the negligence of the opposite party.

In one line

Damages may be nominal, contemptuous, ordinary, aggravated or exemplary, and only the last is meant to punish.

In the wording a student can write in an exam: nominal damages are a token sum awarded where a legal right has been infringed without loss; contemptuous damages are a derisory sum awarded where the claim, though technically good, ought not to have been brought; ordinary or compensatory damages are measured by the plaintiff's actual loss; aggravated damages are compensatory but increased because the defendant's conduct injured the plaintiff's feelings or dignity; and exemplary or punitive damages exceed the loss and are awarded to punish and deter.

The five kinds

1. Nominal damages. A small sum marking the violation of a right where no real loss followed. They are the natural award in a case of injuria sine damno, and chapter [Injuria Sine Damno] shows why the action lies at all.

2. Contemptuous damages. A derisory sum, often the smallest coin, awarded where the plaintiff has technically established his claim but the court considers the suit unworthy. The message is that the plaintiff won and should not have come. Costs are often refused as well.

3. Ordinary or compensatory damages. The general case: the sum that represents the plaintiff's loss, assessed on the principles in chapter [Judicial Remedies: Damages].

4. Aggravated damages. Still compensatory, but increased because the manner of the wrong added to the injury: insult, humiliation, malice, or a high-handed way of doing it. They compensate injured feelings rather than punish.

5. Exemplary or punitive damages. A sum beyond compensation, awarded to punish the defendant and to deter him and others. They are exceptional, and the classes in which they are given are narrow: oppressive, arbitrary or unconstitutional action by servants of the government; conduct calculated by the defendant to make a profit exceeding the compensation payable to the plaintiff; and cases where a statute authorises them.

The Indian departure: the size of the defendant enters the calculation

Facts. M.C. Mehta v. Union of India, AIR 1987 SC 1086, decided on 20 December 1986 by five judges. Oleum gas escaped from a unit of Shriram Foods and Fertiliser Industries in a densely populated part of Delhi, and the Court had to fix the measure of liability of an enterprise carrying on a hazardous industry.

Held. Besides laying down absolute liability, the Court held that the measure of compensation must be correlated to the magnitude and capacity of the enterprise, because the compensation must have a deterrent effect: the larger and more prosperous the enterprise, the greater the amount payable. It reasoned that an enterprise permitted to carry on a hazardous activity for profit must absorb the cost of accidents as an item of its overheads.

In one line

An injunction stops a wrong from continuing or beginning, and specific restitution gives the plaintiff back the very thing he lost.

In the wording a student can write in an exam: besides damages, a plaintiff in tort may obtain an injunction, which is an order restraining the defendant from doing or continuing a wrongful act or, in its mandatory form, compelling him to undo it, and specific restitution of property, which is the recovery of the property itself; injunctions in India are governed by sections 36 to 42 of the Specific Relief Act 1963 and recovery of property by sections 5 to 8 of the same Act.

Injunctions: the statutory scheme

Section 36 provides that preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.

Section 37 defines the two: a temporary injunction continues until a specified time or until further order of the court, and is regulated by the Code of Civil Procedure 1908; a perpetual injunction can be granted only by the decree made at the hearing and upon the merits of the suit, and thereby the defendant is perpetually enjoined from asserting a right or committing an act which would be contrary to the plaintiff's rights.

Section 38 governs the perpetual injunction. It may be granted to prevent the breach of an obligation existing in the plaintiff's favour, and, where the obligation arises from contract, the court is guided by the rules in Chapter II. Where the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction where the defendant is trustee of the property for the plaintiff, where there exists no standard for ascertaining the actual damage caused or likely to be caused by the invasion, where the invasion is such that compensation in money would not afford adequate relief, and where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Those four situations are the answer to "when will a court grant an injunction rather than damages", and they should be reproduced.

Section 39 governs the mandatory injunction: where to prevent the breach of an obligation it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of and also to compel performance of the requisite acts.

Section 40 allows damages to be awarded in addition to or in substitution for an injunction, and requires the plaintiff to claim them in his plaint, though the court may allow an amendment.

Section 41 lists the cases in which an injunction cannot be granted, among them: to restrain a person from prosecuting a pending judicial proceeding, except to prevent a multiplicity of proceedings; to restrain proceedings in a court not subordinate to the one from which the injunction is sought; to restrain a person from applying to a legislative body; to restrain proceedings in a criminal matter; to prevent the breach of a contract which could not be specifically enforced; to prevent an act of which it is not reasonably clear that it will be a nuisance; to prevent a continuing breach in which the plaintiff has acquiesced; where equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in the case of breach of trust; and where the conduct of the plaintiff or his agents disentitles him to the assistance of the court.

In one line

In some situations the law allows a person to put a wrong right himself, without going to court, provided he uses no more force than is necessary.

In the wording a student can write in an exam: the extra-judicial remedies, also called remedies by the act of the party or self-help, are self-defence, expulsion of a trespasser, re-entry on land, recaption of goods, abatement of a nuisance, and distress damage feasant; each is available only within narrow limits, each requires that no more force be used than is reasonably necessary, and a person who exceeds those limits commits a tort himself.

1. Self-defence

A person may use reasonable force to defend his own body, the body of another, and property in his possession against an unlawful attack. Chapter [General Defences II] works out the conditions, and the penal law states the same right in sections 34 and 35 of the Bharatiya Nyaya Sanhita 2023: nothing is an offence which is done in the exercise of the right of private defence, and every person has a right, subject to the restrictions in section 37, to defend his own body and the body of any other person against any offence affecting the human body, and property, whether movable or immovable, of himself or of any other person.

The limits. The force must be necessary and proportionate, it must be used while the danger continues, and property may never be defended by force intended to cause death.

2. Expulsion of a trespasser

An occupier may request a trespasser to leave and, after giving him a reasonable opportunity to go, may put him out using no more force than is reasonably necessary.

The limits. The request comes first, except where the entry was violent; the force must be reasonable; and a person who entered lawfully must be given a reasonable time to leave before he is treated as a trespasser at all.

3. Re-entry on land

A person entitled to possession may enter and retake the land, using no more force than is reasonably necessary.

This is the most dangerous of the six, and it must be read with section 6 of the Specific Relief Act 1963, which gives a person dispossessed otherwise than in due course of law a summary suit to recover possession within six months, in which even a true owner's title is no defence. So a person who takes the law into his own hands may find himself ordered to give the land back and left to sue on his title afterwards. Chapter [Remedies for Trespass to Land] works that out.

4. Recaption of goods

A person entitled to the immediate possession of goods may retake them from a person who has wrongfully taken or detained them.

In one line

The Consumer Protection Act 2019 gives a buyer of goods or services a quick and cheap remedy before a Commission, in place of a suit.

In the wording a student can write in an exam: the Consumer Protection Act 2019, Act 35 of 2019, was enacted to provide for the protection of the interests of consumers and to establish authorities for the timely and effective administration and settlement of consumer disputes; it replaced the Consumer Protection Act 1986, which section 107 repeals while saving what was done under it; and it added a regulator, the Central Consumer Protection Authority, a chapter on product liability, provisions on e-commerce and unfair contracts, and mediation.

Why the ordinary law was not enough

A buyer with a defective refrigerator has, in theory, a claim in contract against the seller and possibly one in tort against the manufacturer. In practice a suit costs more than the refrigerator, takes years, and requires proof the buyer cannot get. The doctrine of caveat emptor, let the buyer beware, made things worse, because it put the risk of quality on the person least able to judge it.

The consumer law answers with four things: a forum that is quick and cheap, a procedure that is summary, a definition of the wrong that does not require proof of fault in the ordinary sense, and a regulator that can act without waiting for a complaint.

Commencement and repeal

Section 1 provides for the short title, extent, commencement and application. The Act extends to the whole of India, and different dates could be appointed for different provisions and States.

The dates, taken from the Act's own footnotes. Most of the Act, including sections 2 in part, 3 to 9, 28 to 73, 74 to 81, 82 to 87, 90, 91, 95, 98, 100 to 103, 105, 106 and 107, came into force on 20 July 2020, by notification S.O. 2351(E) of 15 July 2020. The provisions relating to the Central Consumer Protection Authority, sections 10 to 27 and the connected clauses, came into force on 24 July 2020, by notification S.O. 2421(E) of 23 July 2020.

Section 107 repeals the Consumer Protection Act 1986 and saves anything done or any action taken under it, and provides that mention of particular matters shall not prejudice the general application of section 6 of the General Clauses Act 1897 to the repeal.

Section 106 is the ordinary power to remove difficulties within two years.

What the repeal did to pending cases

Facts. Neena Aneja v. Jai Prakash Associates Ltd, decided on 16 March 2021. A complaint had been instituted before the National Commission under the Act of 1986. After the Act of 2019 came into force on 20 July 2020 with higher pecuniary limits, the National Commission directed the pending case to be filed before the forum having jurisdiction under the new Act.

In one line

A consumer is a person who buys goods or hires services for a consideration, or anybody using them with his approval, but not a person who buys for resale or for a commercial purpose.

In the wording a student can write in an exam: under section 2(7) of the Consumer Protection Act 2019 a consumer is any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment, and includes any user of such goods with the approval of the buyer, but does not include a person who obtains the goods for resale or for any commercial purpose; and any person who hires or avails of any service for such a consideration, and any beneficiary of the service availing it with the approval of the person who hired it, but not a person who avails of a service for any commercial purpose.

The definition, taken apart

Two limbs. Goods, in sub-clause (i), and services, in sub-clause (ii). A complainant must fall in one of them.

Consideration is essential. It may be paid, promised, partly paid and partly promised, or under a system of deferred payment. A person who receives goods or services entirely as a gift is not a consumer.

The user and the beneficiary are included. A person who did not buy the goods is a consumer if he uses them with the buyer's approval, and a person who did not hire the service is a consumer if he is a beneficiary of it with the approval of the person who hired it. That is how a member of a family, or a patient whose treatment a relative paid for, gets standing.

Two exclusions. Buying for resale, and buying or availing for a commercial purpose.

The Explanation. Clause (a) provides that commercial purpose does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment. Clause (b) provides that "buys any goods" and "hires or avails any services" include offline or online transactions through electronic means, by teleshopping, direct selling or multi-level marketing.

The commercial purpose exclusion, and the two cases on it

Facts. Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583, decided on 4 April 1995. A small-scale industrial unit bought machinery and complained to a consumer forum. The question was whether a purchase for use in a manufacturing business is a purchase for a commercial purpose, and what the Explanation added in 1993 does.

Held. Whether a purchase is for a commercial purpose depends on the facts of each case. Goods bought and used exclusively for earning a livelihood by self-employment are not bought for a commercial purpose, whatever the size of the machine, and this covers a person who works the machine himself, with or without the help of one or two others. But where goods are bought for a larger commercial venture, run with employed labour and for profit, the buyer is not a consumer. The Explanation is clarificatory and applies to pending matters.

In one line

A defect is a fault, imperfection or shortcoming in the quality of goods measured against what the law, a contract or the trader's own claim required.

In the wording a student can write in an exam: section 2(10) of the Consumer Protection Act 2019 defines a defect as any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force, or under any contract express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods or product; the word "defective" is construed accordingly.

The three standards a defect is measured against

Read the definition slowly, because it contains three separate yardsticks and a problem question usually turns on which one applies.

1. What the law requires. A standard fixed by or under any law in force, for example a quality standard prescribed for a food product or a safety standard for a helmet.

2. What the contract requires. Express terms, and implied terms.

3. What the trader claimed. "As is claimed by the trader in any manner whatsoever" is the widest limb: an advertisement, a brochure, a label, a sales representation. A trader who claims more than the law requires is held to his claim.

The definition is about the goods, not about the seller's conduct. A defect exists or it does not, whether or not anybody was careless.

Goods, product, and the related definitions

Goods, in section 2(21), means every kind of movable property and includes food as defined in the food safety law.

Product, in section 2(33), means any article, goods, substance or raw material, or any extended cycle of it, which may be in gaseous, liquid or solid state, possessing intrinsic value, capable of delivery either as wholly assembled or as a component, and produced for introduction to trade or commerce; it excludes human tissues, blood, blood products and organs.

Spurious goods, in section 2(43), means goods which are falsely claimed to be genuine.

Product liability and its associated definitions carry the further scheme in Chapter VI, which chapter [Product Liability] works out.

How a defect is proved: sections 38 and 39

This is the part students omit, and it is the part that answers "what will the Commission actually do".

Section 38 governs the procedure on admission of a complaint. Where a complaint relates to goods, the Commission refers a sample of the goods to an appropriate laboratory for testing where it is necessary to determine whether they suffer from any defect; the complainant deposits the fees for the analysis; the report is sent to the parties, who may object to it; and the Commission decides the complaint after hearing the parties on the report. Where the defect can be determined without analysis, or the complaint relates to services, the Commission proceeds on the evidence brought by the parties.

In one line

Service is anything made available to potential users for a consideration, and deficiency is any shortcoming in the way it is performed.

In the wording a student can write in an exam: section 2(42) of the Consumer Protection Act 2019 defines service as service of any description which is made available to potential users, including but not limited to the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but not including the rendering of any service free of charge or under a contract of personal service; and section 2(11) defines deficiency as any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law or has been undertaken to be performed in pursuance of a contract or otherwise, and includes any act of negligence or omission or commission which causes loss or injury to the consumer, and the deliberate withholding of relevant information from the consumer.

The definition of service, taken apart

"Of any description". The list of banking, financing, insurance, transport and the rest is illustrative and the words "but not limited to" say so. Anything made available to potential users is capable of being a service.

"Made available to potential users". The service must be offered to the public or a section of it, not performed as a private favour.

Two exclusions. A service rendered free of charge, and a service rendered under a contract of personal service.

The second exclusion is narrow, and the case that explains it is the leading case on medical services.

What "deficiency" adds

Section 2(11) is wider than a bare failure to perform. Besides any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance, it includes two things expressly:

any act of negligence or omission or commission by the service provider which causes loss or injury to the consumer; and

the deliberate withholding of relevant information from the consumer.

The second is new with the Act of 2019 and it matters: a provider who conceals a material fact commits a deficiency even if the service he performed was otherwise faultless.

The two cases that fix the reach of "service"

Facts. Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, decided on 5 November 1993. Allottees complained to the consumer forums that statutory development authorities had delayed possession of houses, failed to complete flats within the stipulated time, and built defectively. The authorities argued that a statutory body performing a statutory function was not amenable to the Act, and that housing became a service only when the Act was amended in 1993.

In one line

The Act names eleven kinds of service by way of illustration, and a refusal to give a service at all is as much a deficiency as giving it badly.

In the wording a student can write in an exam: section 2(42) illustrates service by naming banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement and the purveying of news or other information, and the words "but not limited to" make the list illustrative rather than exhaustive; a denial of service, that is, a refusal or failure to provide a service that has been paid for or undertaken, is a deficiency within section 2(11), because deficiency covers any inadequacy in the manner of performance and includes an act of omission causing loss or injury.

The types, one by one

Banking. Dishonour of a cheque wrongly, failure to release a deposit on maturity, unauthorised debits, failure to act on a stop payment instruction.

Financing. Refusal to release a sanctioned loan, wrongful repossession of a financed vehicle, charging more than the agreed rate.

Insurance. Repudiation of a claim without justification, delay in settlement, mis-selling of a policy. National Insurance Co. Ltd v. Harsolia Motors, decided on 13 April 2023, is the case that keeps even a commercial insured inside the Act, because a contract of indemnity has no close and direct nexus with a profit-generating activity.

Transport. Failure to carry, loss of luggage, cancellation without refund, injury caused by a carrier's negligence.

Processing. Spoiling material given for processing, delay, or returning it in a worse condition.

Supply of electrical or other energy. Wrongful disconnection, defective metering, excessive billing, long unexplained outages.

Telecom. Wrongful disconnection, billing for services not provided, failure to port a number.

Boarding or lodging. Unsafe premises, refusal of a confirmed booking, unsanitary conditions. Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201, though a suit and not a consumer complaint, is the case on the standard a five star hotel must meet.

Housing construction. Delay in possession, defective construction, failure to give title. Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, is the leading case, and it brings statutory development authorities inside the Act.

Entertainment and amusement. Cancellation of a booked event, unsafe rides, refusal of a ticket already sold.

Purveying of news or other information. Failure to deliver a subscribed publication, though the content itself is governed by other law.

And because the list is illustrative, education, legal services, courier services, medical services and every other paid service have been dealt with under it; chapter [Medical Services under the Act] takes medical services and chapter [Commercial and Professional Services] takes the professions.

In one line

A business may be a consumer if the service it bought has no close nexus with making a profit, and a professional is a service provider like any other.

In the wording a student can write in an exam: a person who avails of a service for a commercial purpose is not a consumer under section 2(7), and the test is whether the service has a close and direct nexus with a profit-generating activity, judged by the dominant purpose of the transaction; a professional, on the other hand, is not excluded merely because he belongs to a profession subject to its own disciplinary control, so services rendered by doctors, and by other professionals for consideration, fall within section 2(42) unless they are rendered free of charge or under a contract of personal service.

The commercial question: is the complainant a consumer?

The exclusion. Section 2(7) excludes a person who obtains goods for resale or for any commercial purpose, and a person who avails of a service for any commercial purpose.

The exception. The Explanation provides that commercial purpose does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment.

The test.

Facts. Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583, decided on 4 April 1995. A small-scale industrial unit bought machinery and complained to a consumer forum.

Held. Whether a purchase is for a commercial purpose is a question of fact in each case. Goods bought and used exclusively for earning a livelihood by self-employment are not for a commercial purpose whatever the size of the machine, and this covers a person who works it himself with or without the help of one or two others; but a purchase for a larger venture run with employed labour and for profit is excluded. The Explanation is clarificatory and applies to pending matters.

Facts. National Insurance Co. Ltd v. Harsolia Motors, decided on 13 April 2023. Commercial entities insured their premises and stock, suffered losses in riots, and complained when the insurer repudiated their claims.

Held. The test is whether the service has a close and direct nexus with a profit-generating activity, and the dominant intention or dominant purpose of the transaction must be examined. A contract of insurance is a contract of indemnity whose object is to make good a loss from an unknown or contingent event, not to generate profit, so the complaint had no such nexus and the commercial insured was a consumer.

How to use the two together. Ask what the service was taken for, and whether that purpose is closely and directly tied to earning profit. Buying a machine to run a factory with employees is; insuring the factory against fire is not; buying a machine to work oneself is not.

In one line

Medical treatment for a charge is a service, so a patient may complain to a Consumer Commission instead of suing, unless the treatment was free to everybody or given to an employer.

In the wording a student can write in an exam: in Indian Medical Association v. V.P. Shantha the Supreme Court held that service rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment, medicinal and surgical, falls within the definition of service, except where the doctor renders service free of charge to every patient or under a contract of personal service; disciplinary control by a Medical Council does not exclude the Act; and where a hospital charges those who can pay and treats the poor free, even the free service is service and its recipient is a consumer.

The leading case, conclusion by conclusion

Facts. Indian Medical Association v. V.P. Shantha, AIR 1996 SC 550, decided on 13 November 1995 by three judges. The question was whether, and in what circumstances, a medical practitioner, a private hospital or a nursing home renders a service within the consumer law.

Held. The Court's conclusions, in substance:

1. Service rendered to a patient by a medical practitioner, by way of consultation, diagnosis and treatment, both medicinal and surgical, is service, except where the doctor renders service free of charge to every patient or under a contract of personal service.

2. That medical practitioners belong to a profession and are subject to the disciplinary control of the Medical Council of India or a State Medical Council does not exclude their services from the Act.

3. A contract of personal service must be distinguished from a contract for personal services. In the absence of a master and servant relationship between patient and practitioner, the service is under a contract for personal services and is not within the exclusion.

4. The expression "contract of personal service" is not confined to domestic servants; it includes the employment of a medical officer to render medical service to his employer, and such service is outside the Act.

5. Service rendered free of charge by a practitioner attached to a hospital or nursing home, or by a medical officer employed there, where services are rendered free of charge to everybody, is not service; a token registration fee does not alter that.

6. The same is true of a non-Government hospital or nursing home where no charge whatsoever is made from any person and all patients, rich and poor, are treated free.

7. Service at a non-Government hospital or nursing home where charges are payable is service.

8. Service at a non-Government hospital where those who can pay are charged and those who cannot are treated free is service for both classes: the free service is also service and its recipient is a consumer.

In one line

An unfair trade practice is a deceptive way of promoting a sale, a restrictive trade practice manipulates supply or price, and an unfair contract is a one-sided term.

In the wording a student can write in an exam: section 2(47) defines an unfair trade practice as a trade practice which, for the purpose of promoting the sale, use or supply of any goods or the provision of any service, adopts any unfair method or unfair or deceptive practice, and enumerates nine heads; section 2(41) defines a restrictive trade practice as one which tends to bring about manipulation of price or its conditions of delivery, or to affect the flow of supplies in the market, so as to impose unjustified costs or restrictions on consumers; and section 2(46) defines an unfair contract as one between a manufacturer, trader or service provider and a consumer having terms which cause a significant change in the consumer's rights.

Unfair trade practice: the nine heads of section 2(47)

1. False statements about goods or services. Falsely representing that goods are of a particular standard, quality, quantity, grade, composition, style or model; that services are of a particular standard, quality or grade; that rebuilt, second-hand, renovated, reconditioned or old goods are new; that goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which they do not have; that the seller has a sponsorship, approval or affiliation which he does not have; a false or misleading representation about the need for or usefulness of goods or services; a warranty or guarantee of performance, efficacy or length of life that is not based on an adequate or proper test, the burden of proving an adequate test lying on the person who raises it; a purported warranty or promise to replace, maintain or repair that is materially misleading or has no reasonable prospect of being carried out; materially misleading the public about the price at which goods are ordinarily sold; and giving false or misleading facts disparaging another's goods, services or trade.

2. Bargain prices. Advertising goods at a bargain price where there is no intention of offering them at that price. The Explanation defines a bargain price as one stated in an advertisement to be a bargain price, or one a reader would reasonably understand to be a bargain price.

3. Gifts, prizes and contests. Offering gifts, prizes or other items with no intention of providing them, or creating the impression that something is free when its cost is covered by the charge; conducting a contest, lottery or game of chance or skill to promote a sale or business interest, except as may be prescribed; and withholding from participants the final results of a scheme.

In one line

A false or misleading advertisement may be stopped, and the manufacturer, the endorser and the publisher may all be penalised.

In the wording a student can write in an exam: section 2(28) defines a misleading advertisement as one which falsely describes a product or service, gives a false guarantee or is likely to mislead consumers as to its nature, substance, quantity or quality, conveys a representation which would constitute an unfair trade practice if made by the manufacturer or seller, or deliberately conceals important information; section 21 empowers the Central Authority to order that such an advertisement be discontinued or modified and to impose penalties on the manufacturer, the endorser and the publisher; and section 89 makes a false or misleading advertisement prejudicial to the interest of consumers an offence.

The definition: section 2(28)

A misleading advertisement, in relation to any product or service, means an advertisement which:

falsely describes the product or service;

gives a false guarantee to, or is likely to mislead the consumers as to the nature, substance, quantity or quality of the product or service;

conveys an express or implied representation which, if made by the manufacturer or seller or service provider, would constitute an unfair trade practice; or

deliberately conceals important information.

The fourth limb is the one to remember: concealment is as much an offence as assertion.

What the Central Authority may do: section 21

Sub-section (1): stop or change the advertisement. Where the Central Authority is satisfied after investigation that an advertisement is false or misleading and prejudicial to the interest of any consumer, or is in contravention of consumer rights, it may by order direct the trader, manufacturer, endorser, advertiser or publisher to discontinue the advertisement or to modify it, in the manner and within the time specified.

Sub-section (2): a penalty on the manufacturer or the endorser. It may impose a penalty which may extend to ten lakh rupees, and for every subsequent contravention a penalty which may extend to fifty lakh rupees.

Sub-section (3): a ban on the endorser. Where it deems it necessary, it may prohibit the endorser of a false or misleading advertisement from making an endorsement of any product or service for a period which may extend to one year, and for every subsequent contravention for a period which may extend to three years.

Sub-section (4): a penalty on the publisher. Where it is satisfied after investigation that a person publishes, or is a party to the publication of, a misleading advertisement, it may impose a penalty which may extend to ten lakh rupees.

Sub-section (5): the endorser's defence. No endorser is liable to a penalty under sub-sections (2) and (3) if he has exercised due diligence to verify the veracity of the claims made in the advertisement about the product or service he endorses.

In one line

The six consumer rights are declared by the Act, and three tiers of Council exist to advise on promoting and protecting them.

In the wording a student can write in an exam: section 2(9) declares six consumer rights; sections 3 to 5 establish the Central Consumer Protection Council, an advisory council chaired by the Minister-in-charge of the Department of Consumer Affairs, whose object is to render advice on the promotion and protection of consumer rights and which must meet at least once a year; sections 6 and 7 establish the State Councils, and sections 8 and 9 the District Councils chaired by the Collector, each advisory and each required to meet at least twice a year.

The six consumer rights: section 2(9)

1. The right to be protected against the marketing of goods, products or services which are hazardous to life and property.

2. The right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, so as to protect the consumer against unfair trade practices.

3. The right to be assured, wherever possible, of access to a variety of goods, products or services at competitive prices.

4. The right to be heard and to be assured that consumers' interests will receive due consideration at appropriate fora.

5. The right to seek redressal against unfair trade practices, restrictive trade practices or unscrupulous exploitation of consumers.

6. The right to consumer awareness.

These are the rights the whole Act exists to serve, and an answer on any part of Module IV is improved by naming them.

The Central Council: sections 3, 4 and 5

Section 3. The Central Government shall by notification establish the Central Consumer Protection Council, known as the Central Council. It is an advisory council and consists of the Minister-in-charge of the Department of Consumer Affairs in the Central Government as Chairperson, and such number of other official or non-official members representing such interests as may be prescribed.

Section 4. It shall meet as and when necessary, but at least one meeting shall be held every year, at such time and place as the Chairperson thinks fit, and shall observe such procedure as may be prescribed.

Section 5. Its objects are to render advice on the promotion and protection of the consumers' rights under the Act.

The State Councils: sections 6 and 7

Section 6. Every State Government shall by notification establish a State Consumer Protection Council, known as the State Council, which is an advisory council, with the Minister-in-charge of consumer affairs in the State Government as Chairperson and such other members as may be prescribed, including such number of official or non-official members representing such interests as may be prescribed and such number of members from the Central Government as may be prescribed. It shall meet as and when necessary but not less than two meetings shall be held every year.

In one line

The Central Consumer Protection Authority is a regulator that investigates unfair trade practices and misleading advertisements on its own motion, and can order recall, refund and penalties.

In the wording a student can write in an exam: section 10 establishes the Central Consumer Protection Authority to regulate matters relating to violation of the rights of consumers, unfair trade practices and false or misleading advertisements which are prejudicial to the interests of the public and consumers, and to promote, protect and enforce the rights of consumers as a class; sections 15 and 16 give it an Investigation Wing headed by a Director-General and the assistance of District Collectors; section 18 sets out its powers and functions; sections 19 to 22 give it powers of preliminary inquiry, recall and refund, penalties for misleading advertisements, and search and seizure; and section 24 provides an appeal to the National Commission.

Establishment and composition

Section 10 establishes the Authority, to be known as the Central Consumer Protection Authority, to regulate matters relating to the violation of consumer rights, unfair trade practices and false or misleading advertisements prejudicial to the interests of the public and consumers, and to promote, protect and enforce the rights of consumers as a class. It consists of a Chief Commissioner and such number of other Commissioners as may be prescribed, and its headquarters and regional offices are as notified.

Section 11 provides for the qualifications and method of recruitment of the Chief Commissioner and the Commissioners. Section 12 provides that a vacancy does not invalidate its proceedings. Section 13 allows the appointment of officers, experts and professionals. Section 14 provides for its procedure, and permits it to sit in Benches.

The machinery of investigation

Section 15: the Investigation Wing. The Central Authority shall have an Investigation Wing headed by a Director-General for the purpose of conducting inquiry or investigation, with such number of Additional, Joint, Deputy or Assistant Directors-General as may be required, and those officers have the powers set out in the section, including the power to enter and search premises where a document, record or article is kept, and to seize what is found.

Section 16: the District Collector. The Collector, by whatever name called, may on a complaint or of his own motion inquire into or investigate violations of consumer rights or unfair trade practices within his jurisdiction and submit a report to the Central Authority or to the Commissioner of a regional office.

Section 17: complaints to authorities. A complaint relating to a violation of consumer rights or an unfair trade practice may be forwarded, either in writing or in electronic mode, to any of the authorities: the District Collector, the Commissioner of a regional office, or the Central Authority.

In one line

The District Commission is the forum where a consumer complaint starts, for claims up to fifty lakh rupees.

In the wording a student can write in an exam: sections 28 to 41 of the Consumer Protection Act 2019 establish and regulate the District Consumer Disputes Redressal Commission; it consists of a President and not less than two members, the number being prescribed in consultation with the Central Government; its pecuniary jurisdiction under section 34(1) read with the Rules of 2021 extends to complaints where the value of the goods or services paid as consideration does not exceed fifty lakh rupees; its territorial jurisdiction under section 34(2) includes the place where the complainant resides or personally works for gain; a complaint may be filed under section 35 by a consumer, a recognised consumer association, one or more consumers on behalf of numerous consumers with permission, or a Government or the Central Authority, and may be filed electronically; and an appeal lies to the State Commission under section 41 within forty-five days, conditional on a deposit of fifty per cent of any amount ordered to be paid.

Establishment and composition

Section 28. The State Government shall establish a District Consumer Disputes Redressal Commission in each district, and may establish more than one in a district if it thinks fit. Each Commission consists of a President and not less than two, and not more than such number of, members as may be prescribed in consultation with the Central Government. The Act of 1986 required at least one woman member in terms; the Act of 2019 leaves the composition to the rules, so the requirement is looked for there and not in the section.

Section 29 provides for the qualifications, appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of the President and members, as may be prescribed. Section 30 deals with salaries and conditions of service, section 31 is a transitional provision, section 32 provides that a vacancy is filled by the State Government, and section 33 provides for officers and employees.

Jurisdiction

Pecuniary, section 34(1). The District Commission has jurisdiction to entertain complaints where the value of the goods or services paid as consideration does not exceed one crore rupees, with a proviso allowing the Central Government to prescribe such other value as it deems fit. The value prescribed is fifty lakh rupees, by rule 3 of the Rules of 2021.

Note the words "paid as consideration". Under the Act of 1986 the test was the value of the goods or services and the compensation claimed. Under the Act of 2019 it is what the consumer paid, so a claim for a large compensation on a small purchase stays in the District Commission.

In one line

The complaint is sent to the other side, who has thirty days to answer, goods may be tested in a laboratory, the case is heard on affidavits, and the order is enforced like a court decree.

In the wording a student can write in an exam: on admission the Commission refers a copy of the complaint to the opposite party within twenty-one days, directing him to give his version within thirty days, extendable by not more than fifteen days; where the complaint alleges a defect that cannot be determined without analysis, a sealed sample is sent to an appropriate laboratory which must report within forty-five days, the complainant depositing the fee, and the parties may object to the report; every complaint is heard on affidavit and documentary evidence, and is to be decided as far as possible within three months, or five months where a laboratory analysis is required.

The steps, in order

1. Admission, and mediation. Section 37 allows the Commission, at the first hearing after admission or at any later stage, if it appears that there exist elements of a settlement acceptable to both parties, to direct them to give their consent to have the dispute settled by mediation within five days, and to refer the matter to mediation. Chapter [Mediation under the Act] works that out.

2. Notice to the opposite party. Under section 38(2)(a) the Commission refers a copy of the admitted complaint to the opposite party within twenty-one days of admission, directing him to give his version within thirty days, extendable by not more than fifteen days.

3. If he denies, disputes or does nothing. The Commission proceeds to settle the dispute in the manner set out in the section.

4. Testing the goods. Where the complaint alleges a defect which cannot be determined without proper analysis or test, the Commission obtains a sample from the complainant, seals and authenticates it, and refers it to an appropriate laboratory, which must report within forty-five days or such extended period as the Commission grants. The complainant deposits the fee, which the Commission remits to the laboratory. The report goes to the opposite party with the Commission's remarks, and if either party disputes the findings or the methods, it must submit written objections. Both sides are then heard on the report.

5. Where testing is impossible, or the complaint is about services. Under section 38(3) the Commission refers the complaint for a version within thirty days, extendable by fifteen, and then decides on the evidence brought by both sides, or ex parte on the complainant's evidence if the opposite party does nothing, and it decides on merits if the complainant fails to appear.

In one line

The State Commission hears complaints between fifty lakh and two crore rupees, appeals from the District Commissions, and revisions from them.

In the wording a student can write in an exam: section 42 establishes a State Consumer Disputes Redressal Commission in every State, consisting of a President and not less than four members; section 47 gives it original jurisdiction over complaints where the value of the goods or services paid as consideration exceeds the prescribed lower limit but not the upper, appellate jurisdiction over the District Commissions in the State, and revisional jurisdiction to call for the records of a District Commission which has exercised a jurisdiction not vested in it, failed to exercise one so vested, or acted illegally or with material irregularity; section 50 gives a power of review for an error apparent on the face of the record; and section 51 provides an appeal to the National Commission within thirty days, conditional on a deposit of fifty per cent of any amount ordered.

Establishment and composition

Section 42. The State Government shall establish a State Consumer Disputes Redressal Commission, to be known as the State Commission, and may establish regional Benches. It consists of a President and not less than four, and not more than such number of, members as may be prescribed in consultation with the Central Government.

Sections 43 to 46 deal with qualifications and method of recruitment, salaries and conditions of service, transitional provisions, and vacancies. Sections 48 and 49 deal with the transfer of cases and with officers and employees.

The three jurisdictions: section 47

Original. Complaints where the value of the goods or services paid as consideration exceeds the lower prescribed limit but does not exceed the upper one. As printed, one crore to ten crore; as prescribed, fifty lakh to two crore. Complaints against unfair contracts where the value paid as consideration does not exceed ten crore rupees are also original jurisdiction.

Appellate. Appeals against the orders of any District Commission within the State.

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

The three revisional grounds are worth learning word for word, because they are the same three that govern the National Commission's revisional power under section 58(1)(b), and a question on judicial control of the Commissions is answered by them.

Benches. Section 47(2) allows the jurisdiction to be exercised by Benches constituted by the President, the senior-most member presiding, and section 47(3) provides for differences of opinion to be decided by the majority, with a reference to the President where the members are equally divided.

In one line

The National Commission hears complaints above two crore rupees, appeals from the State Commissions and from the Central Authority, and revisions, and an appeal from it lies to the Supreme Court.

In the wording a student can write in an exam: the National Consumer Disputes Redressal Commission is set up by section 53 and manned under section 54 by a President with a minimum of four members. Section 58 confers four jurisdictions on it, original above the prescribed value, original over unfair contracts above ten crore rupees, appellate from the State Commissions and from the Central Authority, and revisional over the State Commissions on the three grounds already learnt for section 47(1)(b). Section 60 empowers it to review its own orders, and section 67 carries a further appeal to the Supreme Court, limited to orders in original jurisdiction, to be filed in thirty days and preceded by a deposit of half of whatever the appellant was ordered to pay.

Establishment and composition

Section 53. The Central Government shall establish the National Consumer Disputes Redressal Commission, known as the National Commission. It ordinarily functions in the National Capital Region and may sit elsewhere as notified, and the Central Government may establish regional Benches.

Section 54. Its strength is a President together with a minimum of four members, the maximum being left to the rules.

Sections 55 to 57 deal with qualifications, appointment and conditions of service, with vacancies, and with officers and employees. Sections 59, 61 to 66 deal with the procedure applicable, its powers, the finality of orders, and connected matters.

The four jurisdictions: section 58

Original. Complaints where the value of the goods or services paid as consideration exceeds the prescribed amount, printed as ten crore rupees and prescribed as two crore; and complaints against unfair contracts where the value paid as consideration exceeds ten crore rupees.

Appellate over the State Commissions. Appeals against the orders of any State Commission.

Appellate over the regulator. Appeals against the orders of the Central Authority, which section 24 provides for, within thirty days.

Revisional. The records of any dispute pending before or already decided by a State Commission may be sent for, and such order made on them as the case requires, on the same three grounds that section 47(1)(b) gives a State Commission over a District Commission and which chapter [The State Commission] sets out word for word: jurisdiction assumed without authority, jurisdiction refused when it existed, or jurisdiction used illegally or with material irregularity.

Benches. By section 58(2) the President may constitute Benches to exercise these jurisdictions, the seniormost member of a Bench taking the chair, and section 58(3) says what happens when the members of a Bench differ.

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A Commission may send a consumer dispute to a mediator attached to it, and if the parties settle, the Commission records the settlement and disposes of the case.

In the wording a student can write in an exam: section 37 empowers a Commission, at the first hearing after admission or at any later stage, where it appears that there exist elements of a settlement which may be acceptable to the parties, to direct them to give their written consent within five days to have the dispute settled by mediation, and to refer the matter within five days of receiving that consent; Chapter V, sections 74 to 81, provides for consumer mediation cells attached to each Commission, the empanelment and nomination of mediators, their duty to disclose conflicts, the procedure, the settlement and the recording of it.

The reference: section 37

When. At the first hearing of the complaint after its admission, or at any later stage.

On what footing. Where it appears to the Commission that there exist elements of a settlement which may be acceptable to the parties, except in such cases as may be prescribed.

How. It directs the parties to give in writing, within five days, their consent to have the dispute settled by mediation.

Then. Where the parties agree and give written consent, the Commission shall within five days of receipt of that consent refer the matter for mediation, and Chapter V applies.

Mediation is consensual. The Commission may propose it; it cannot compel a settlement, and if consent is not given the complaint proceeds under section 38.

The machinery: Chapter V

Section 74: consumer mediation cells. The State Government shall establish a consumer mediation cell attached to each District Commission and to the State Commission of that State, and the Central Government shall establish one attached to the National Commission and to each of its regional Benches.

Section 75: empanelment of mediators. The National Commission or the State Commission shall prepare a panel of mediators, and the qualifications, experience, procedure for empanelment, the term and the fees are as prescribed.

Section 76: nomination from the panel. The Commission nominates a mediator from the panel.

Section 77: the mediator's duty to disclose. He must disclose any personal, professional or financial interest in the outcome, any circumstance giving rise to a justifiable doubt as to his independence or impartiality, and any other fact likely to create a doubt.

Section 78: replacement. Where such facts appear, or a party objects on that ground, the Commission replaces the mediator.

Section 79: the procedure. Mediation is held in the consumer mediation cell attached to the Commission, and the mediator conducts it in the prescribed manner, hearing the parties, examining the issues, and communicating his view.

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A manufacturer, a service provider and a seller may each be made to compensate a person harmed by a defective product, and the manufacturer cannot escape by proving he was not negligent.

In the wording a student can write in an exam: Chapter VI of the Consumer Protection Act 2019 applies to every claim for compensation under a product liability action for harm caused by a defective product, and section 83 allows such an action against a product manufacturer, a product service provider or a product seller.

Then, taking each in turn: section 84 makes a manufacturer liable on five grounds, and provides expressly that he is liable even if he proves he was not negligent or fraudulent in making the express warranty.

Section 85 makes a service provider liable on four grounds.

Section 86 makes a seller who is not the manufacturer liable on five grounds, and section 87 provides the exceptions.

The vocabulary

Product liability means the responsibility of a product manufacturer, seller or service provider to compensate for harm caused to a consumer by a defective product or a deficiency in services relating to it.

Product liability action is a complaint by a person before a Commission for that compensation.

Manufacturer is defined by section 2(24) as a person who makes any goods or parts of them; or assembles any goods or parts made by others; or puts, or causes to be put, his own mark on goods made by another person. The third limb is the one worth remembering: a trader who buys goods from a factory and sells them under his own brand is a manufacturer for this Act, and cannot answer a consumer by saying he only sold them.

Harm, in relation to a product liability action, covers damage to property other than the product itself, personal injury, illness or death, mental agony or emotional distress accompanying personal injury or damage to property, and loss of consortium or services, but not harm to the product itself, damage to property on account of a breach of warranty conditions, or commercial or economic loss including loss of profits.

Who may be made liable, and on what grounds

Section 84: the product manufacturer. He is liable if:

(a) the product contains a manufacturing defect;

(b) the product is defective in design;

(c) there is a deviation from manufacturing specifications;

(d) the product does not conform to the express warranty; or

(e) the product fails to contain adequate instructions of correct usage to prevent harm, or a warning about improper or incorrect usage.

And sub-section (2) is the heart of the chapter: a product manufacturer is liable even if he proves that he was not negligent or fraudulent in making the express warranty of a product. That is liability without fault, stated in a statute.

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The Act punishes disobedience of the regulator, misleading advertisements, and the manufacture or sale of adulterated or spurious goods, with punishment rising to life imprisonment where a consumer dies.

In the wording a student can write in an exam: Chapter VII of the Consumer Protection Act 2019 creates the offences; section 88 punishes non-compliance with a direction of the Central Authority, section 89 a false or misleading advertisement, section 90 the manufacture, storage, sale, distribution or import of goods containing an adulterant, and section 91 the same acts in relation to spurious goods, the punishment in the last two graded by the harm caused and rising to imprisonment for life where a consumer dies; section 92 requires a complaint by the Central Authority or an officer authorised by it before a court takes cognizance, section 93 punishes a vexatious search, and section 96 allows compounding of offences under sections 88 and 89.

The offences

Section 88: disobeying the Central Authority. Whoever fails to comply with a direction of the Central Authority is punishable with imprisonment which may extend to six months or with fine which may extend to twenty lakh rupees, or with both.

Section 89: false or misleading advertisement. Imprisonment up to two years and fine up to ten lakh rupees; for a subsequent offence, imprisonment up to five years and fine up to fifty lakh rupees. Chapter [Misleading Advertisements and the Liability of an Endorser] works it out.

Section 90: adulterated goods. Whoever, by himself or through another, manufactures for sale, stores, sells, distributes or imports any product containing an adulterant is punishable:

(a) where the act does not result in injury, with imprisonment up to six months and fine up to one lakh rupees;

(b) where it causes injury not amounting to grievous hurt, with imprisonment up to one year and fine up to three lakh rupees;

(c) where it causes grievous hurt, with imprisonment up to seven years and fine up to five lakh rupees;

(d) where it results in death, with imprisonment of not less than seven years, which may extend to imprisonment for life, and fine of not less than ten lakh rupees.

Sub-section (2): the offences in clauses (c) and (d) are cognizable and non-bailable.

Sub-section (3): besides the punishment, the court may, on a first conviction, suspend any licence issued to the person under any law for up to two years, and on a second or subsequent conviction, cancel it.

Section 91: spurious goods. The same three grades for injury, grievous hurt and death, with the same penalties as clauses (b), (c) and (d) of section 90, spurious goods being goods falsely claimed to be genuine under section 2(43).

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A High Court may correct a Commission under articles 226 and 227, the Supreme Court hears appeals from the National Commission's original orders, and neither an arbitration clause nor a special statute keeps a consumer out.

In the wording a student can write in an exam: the orders of the Consumer Commissions are subject to the writ jurisdiction of the High Courts under article 226 and their power of superintendence under article 227, and to the appellate jurisdiction of the Supreme Court under section 67 in respect of the National Commission's original orders and under article 136 otherwise; within the Act the control is exercised by appeal, by the revisional powers in sections 47(1)(b) and 58(1)(b) and by the power of review; and the Supreme Court has held that the consumer remedy is an additional remedy which is not displaced by an arbitration clause or by the Real Estate (Regulation and Development) Act 2016.

The controls inside the Act

Appeal. From the District Commission to the State Commission under section 41, from the State Commission's original orders to the National Commission under section 51, from the Central Authority to the National Commission under section 24, and from the National Commission's original orders to the Supreme Court under section 67.

Revision. A State Commission may call for the record of a District Commission, and the National Commission that of a State Commission, where it has exercised a jurisdiction not vested in it by law, failed to exercise a jurisdiction so vested, or acted in the exercise of its jurisdiction illegally or with material irregularity: sections 47(1)(b) and 58(1)(b).

Review. For an error apparent on the face of the record: sections 40, 50 and 60.

Administrative control. Section 70: the National Commission monitors the State and District Commissions, and a State Commission the District Commissions in its State.

The controls outside the Act

Article 227. A High Court has power of superintendence over all courts and tribunals within its territorial jurisdiction, and a Consumer Commission is such a tribunal.

Article 226. A writ petition lies against an order of a Commission, though it is not entertained as a matter of course where the Act provides an appeal, because an alternative remedy is a discretionary bar.

Article 136. Special leave to appeal to the Supreme Court, which is the route where section 67 does not apply, that is, against the National Commission's appellate and revisional orders.

Say in an answer that the existence of a statutory appeal does not oust the constitutional jurisdiction; it only makes a court slow to exercise it.

The Act's own validity

Facts. State of Karnataka v. Vishwabharathi House Building Co-operative Society, (2003) 2 SCC 412, decided on 17 January 2003. The constitutional validity of the Consumer Protection Act 1986 was challenged on the grounds that its fora exercised judicial power without judicial members of adequate standing, that their summary procedure denied a fair hearing, and that they encroached on the jurisdiction of the civil courts.

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The Motor Vehicles Act 1988 governs everything about vehicles on Indian roads, and three of its chapters govern compensation for accidents.

In the wording a student can write in an exam: the Motor Vehicles Act 1988, Act 59 of 1988, consolidates and amends the law relating to motor vehicles; for this syllabus the operative parts are Chapter XI, insurance of motor vehicles against third party risks, sections 145 to 164D as substituted with effect from 1 April 2022, and Chapter XII, Claims Tribunals, sections 165 to 176; the definitions in section 2 supply the words a claim turns on, and Chapter X, which contained the old no-fault liability in sections 140 to 144, stands omitted.

The plan of the Act

Chapters XI and XII are worked in full in the eight chapters that follow. Chapters I to IX, XIII and XIV are covered, section by section but briefly, in the five chapters at the end of this book, because the Act is the boundary of the syllabus even where MU's labels do not reach it.

The definitions a claim turns on

"Motor vehicle" or "vehicle", section 2(28). Any mechanically propelled vehicle adapted for use upon roads, whether the power of propulsion is transmitted from an external or an internal source, including a chassis to which a body has not been attached and a trailer; but not a vehicle running upon fixed rails, a vehicle of a special type adapted for use only in a factory or other enclosed premises, or a vehicle having less than four wheels fitted with an engine of a capacity not exceeding the limit the section states.

The words "adapted for use upon roads" have generated much of the litigation, because a machine designed for another purpose may still be a motor vehicle if it can be and is used on a road.

"Owner", section 2(30). The person in whose name the motor vehicle stands registered; where that person is a minor, the guardian; and where the vehicle is the subject of a hire-purchase, lease or hypothecation agreement, the person in possession under that agreement.

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A motor accident claim is a statutory claim for compensation before a Tribunal, arising out of the use of a motor vehicle, and it has replaced the ordinary civil suit.

In the wording a student can write in an exam: a claim for compensation for an accident arising out of the use of a motor vehicle is made to a Motor Accidents Claims Tribunal constituted under section 165, and by section 175 no civil court has jurisdiction to entertain any question relating to such a claim where a Tribunal has been constituted for that area; the claim may be founded on fault, that is, on the negligence of the driver, or on the statutory no-fault provision, and the expression "arising out of the use of a motor vehicle" is construed widely.

The three ways compensation is claimed

1. On proof of fault. The ordinary claim: the claimant proves that the driver was negligent, and the owner is vicariously liable, and the insurer must satisfy the award. This is the route to full compensation, assessed as "just compensation" under section 168.

2. Without proof of fault. The statutory no-fault claim, now section 164, which gives fixed sums for death and grievous hurt with no inquiry into negligence at all. Chapter [Liability without Fault] works it out.

3. Where the vehicle is never identified. The hit and run scheme, sections 161 to 163, worked in chapter [Hit and Run, and the Golden Hour].

The bar on the civil court

Section 175 provides that where a Claims Tribunal has been constituted for any area, no civil court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Tribunal in respect of such a claim shall be granted by a civil court.

So the Tribunal is not an alternative to the civil court; where it exists, it is the only forum.

"Arising out of the use of a motor vehicle"

This is the phrase that decides jurisdiction, and it is read widely.

Facts. Shivaji Dayanu Patil v. Vatschala Uttam More, (1991) 3 SCC 530, decided on 17 July 1991. A petrol tanker collided with a truck, went off the road and overturned. About four hours later the petrol that had leaked caught fire and exploded, killing and injuring a large number of people who had gathered near the tanker, many of them collecting the leaking petrol.

Held. The expression "arising out of the use of a motor vehicle" is wider than "caused by" the vehicle, and covers an accident having a causal relation with the use of the vehicle even where it occurs some time after the vehicle has come to rest. The explosion and fire were part of the same incident as the collision and overturning, so the claims arose out of the use of the tanker.

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A Motor Accidents Claims Tribunal is a State-constituted tribunal, manned by judges, with the powers of a civil court and a summary procedure, and where one exists it takes the place of the civil court.

Section 165: who constitutes it, and for what

Who. A State Government, by notification in the Official Gazette.

How many. One or more Tribunals, for such area as the notification specifies. Where two or more are constituted for one area, the State Government may by general or special order regulate the distribution of business among them, sub-section (4).

For what. Adjudicating upon claims for compensation in respect of

• accidents involving the death of persons arising out of the use of motor vehicles,
• accidents involving bodily injury to persons so arising,
• damage to any property of a third party so arising,
• or both.

The Explanation. It declares, for the removal of doubts, that the expression covers claims for compensation under section 164. Before 1 April 2022 it read "section 140 and section 163A"; section 52 of the Motor Vehicles (Amendment) Act 2019 substituted the new reference, and it came into force with the rest of the new Chapter XI.

The Explanation exists because a no-fault claim is not a claim in tort at all: without it, a Tribunal set up to adjudicate claims arising out of accidents might have been said to have no jurisdiction over a claim that does not depend on anybody's fault.

Who sits on it

Sub-section (2). As many members as the State Government thinks fit; where there are two or more, one is appointed Chairman.

Sub-section (3): the qualification. A person is not qualified unless they

• are, or have been, a Judge of a High Court, or
• are, or have been, a District Judge, or
• are qualified for appointment as a Judge of a High Court or as a District Judge.

Every qualification is judicial. This is the answer to the objection that compensation for a road accident has been taken away from the courts: it has been given to a judge, sitting under a different name and a shorter procedure.

Section 169: procedure and powers

Sub-section (1): summary procedure. In holding an inquiry under section 168 the Tribunal may, subject to the rules, follow such summary procedure as it thinks fit. It is not bound by the Code of Civil Procedure.

Sub-section (2): the powers of a civil court. For taking evidence on oath, enforcing the attendance of witnesses, and compelling the discovery and production of documents and material objects, and for such other purposes as may be prescribed. And the Tribunal is deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure 1973, that is, for prosecuting offences against its own process, such as false evidence before it.

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Section 166 says who may apply, to which Tribunal, and by when; and since 1 April 2022 the police report of the accident is itself treated as an application.

Who may apply: section 166(1)

• (a) the person who has sustained the injury;
• (b) the owner of the property;
• (c) where death has resulted, all or any of the legal representatives of the deceased;
• (d) any agent duly authorised by the injured person or by all or any of the legal representatives.

First proviso. Where all the legal representatives have not joined, the application shall be made on behalf of or for the benefit of all of them, and those who have not joined shall be impleaded as respondents.

So a claim by one heir is not a claim for that heir alone. The Act keeps the whole family before the Tribunal even when only one of them has come to it.

"Legal representatives" is read widely

Facts. Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, AIR 1987 SC 1690, decided on 11 May 1987. A boy was knocked down and killed by a bus of the Corporation. His brothers applied to the Tribunal as his heirs and legal representatives. The Corporation argued that only the wife, husband, parent and child named in the Fatal Accidents Act 1855 could claim, and that the Motor Vehicles Act provisions were merely procedural.

Held. The brother of a person who dies in a motor accident may maintain a claim petition if he is a legal representative; every legal representative who suffers on account of the death should have a remedy; and the Tribunal's task is to determine what compensation appears to it to be just and to specify the persons to whom it is payable.

Why it matters here. It settles that the class of claimants under section 166 is not the class in the Act of 1855. The point is worked out in chapter [Death and the Fatal Accidents Act 1855].

And a legal representative who is not a dependant. In Manjuri Bera v. Oriental Insurance Co. Ltd, (2007) 10 SCC 643, a married daughter claimed the fixed no-fault amount for her father's death and was met with the objection that she was not dependent on him. The Court held that a legal representative who is not a dependant may still be a beneficiary, because the statutory liability is for a fixed and crystallised amount which forms part of the estate, and that "legal representative", undefined in the Act, is to be given a wide meaning.

The second proviso: accepting section 164 ends the petition

Inserted by section 53 of the amending Act, in force from 1 April 2022:

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The Tribunal gives notice to the insurer, hears the parties, holds an inquiry, and makes an award of the compensation that appears to it to be just, saying who must pay it and to whom.

Section 168(1): the four things an award must do

On receipt of an application under section 166 the Tribunal shall, after giving notice of the application to the insurer and after giving the parties including the insurer an opportunity of being heard, hold an inquiry into the claim and, subject to the provisions of section 163, may make an award

1. determining the amount of compensation which appears to it to be just,
2. specifying the person or persons to whom compensation shall be paid, and
3. specifying the amount which shall be paid by the insurer, or the owner, or the driver of the vehicle involved, or by all or any of them.

The proviso, which sent a claim under the old section 140 to be disposed of under the repealed Chapter X, was omitted with effect from 1 April 2022, and the reference in the opening words was changed from section 162 to section 163 by section 54 of the amending Act.

The new cross-reference is not a technicality. Section 163 requires the Tribunal, before awarding compensation, to verify whether hit and run compensation under section 161 has already been paid or applied for, and to direct a refund of so much of the award as equals what was paid.

"Just" is the whole standard. The Act does not say "damages", and it does not adopt the measure of the Fatal Accidents Act 1855. In Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, AIR 1987 SC 1690, the Supreme Court described the Tribunal's task as determining what compensation appears to it to be just and specifying the persons to whom it is payable. How that figure is worked out is chapter [Computing Just Compensation].

Section 168(2) and (3): copies and deposit

(2) Copies. The Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within fifteen days from the date of the award.

(3) Deposit. The person required to pay shall, within thirty days of the date of announcing the award, deposit the entire amount awarded in such manner as the Tribunal may direct.

Thirty days from announcing, not from receiving the copy. The two periods run from different events and a student who confuses them will get the sequence wrong.

Section 170: letting the insurer fight the whole case

Ordinarily the insurer may resist a claim only on the limited statutory grounds, which are worked out in chapter [The Insurer: Duties, Defences and Pay and Recover]. Section 170 is the exception. Where in the course of an inquiry the Tribunal is satisfied that

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Income, plus future prospects, less the deceased's own living expenses, multiplied by a multiplier fixed by age, plus fixed sums for loss of estate, consortium and funeral expenses.

The Act says only that the compensation must be "just", section 168(1). Everything else in this chapter is judge-made, and it is judge-made for a reason a student should be able to state: the Second Schedule, which once supplied a statutory table, was omitted with effect from 1 April 2022, and long before that the Supreme Court had found that Tribunals were reaching wildly different figures on similar facts.

The formula

Step 1. Take the actual income of the deceased, less income tax. Step 2. Add a percentage for future prospects, fixed by age and by the nature of the employment. Step 3. Deduct the personal and living expenses of the deceased, as a fraction fixed by the number of dependants. Step 4. What remains is the multiplicand, the annual loss of dependency. Step 5. Multiply by the multiplier for the age of the deceased. Step 6. Add the conventional heads: loss of estate, loss of consortium, funeral expenses.

Step 2: future prospects

Facts. Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, decided on 15 April 2009. The dependants of a man killed in a motor accident; the Tribunal and the High Court differed on income, deduction and multiplier, and the Court took the occasion to standardise all three.

Held. The starting point is actual income less income tax. As a rule of thumb, fifty per cent of the actual salary is added for future prospects where the deceased had a permanent job and was below forty; thirty per cent where the age was forty to fifty; and nothing where the age was above fifty.

Facts. National Insurance Co. Ltd v. Pranay Sethi, (2017) 16 SCC 680, decided on 31 October 2017. A Constitution Bench of five judges, constituted to settle a conflict on whether future prospects could be added for a deceased who was self-employed or on a fixed salary, and on the figures under the conventional heads.

Held. The table below, and the conventional-head figures set out further down.

"Actual salary" means actual salary less tax; "established income" means income minus the tax component.

Pranay Sethi did two things at once. It extended future prospects to the self-employed and the fixed-salary earner, who had earlier been denied them altogether, and it filled the gap above fifty that Sarla Verma had left at nothing.

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Ninety days to the High Court, with a deposit if you are the one who must pay and a floor of one lakh rupees on what is worth appealing; and an unpaid award is recovered as an arrear of land revenue.

Section 173: appeal to the High Court

Who and when. Any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court. There is no intermediate appeal and no appeal to a district court.

First proviso: the deposit. No appeal by the person who is required to pay any amount in terms of the award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court.

Note who the proviso binds. A claimant appealing for more compensation deposits nothing. Only the person ordered to pay must deposit, and the sum is capped, so on a large award the deposit is twenty-five thousand rupees.

Second proviso: delay. The High Court may entertain the appeal after the ninety days if satisfied that the appellant was prevented by sufficient cause from preferring it in time.

Compare section 166(3). The limitation for the claim itself, six months, carries no power to condone; the limitation for the appeal does.

Sub-section (2): the floor. No appeal lies if the amount in dispute in the appeal is less than one lakh rupees. The figure was "ten thousand rupees" until section 57 of the Motor Vehicles (Amendment) Act 2019 substituted "one lakh", in force from 1 April 2022.

Read the words: it is the amount in dispute in the appeal, not the amount of the award. An award of eight lakh appealed on a point worth sixty thousand rupees is below the floor.

Section 174: recovery as an arrear of land revenue

Where any amount is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to the amount, issue a certificate for the amount to the Collector, and the Collector shall proceed to recover it in the same manner as an arrear of land revenue.

Two routes since 1 April 2022. Section 169(4), inserted by section 55 of the amending Act, gives the Tribunal, for the enforcement of its award, all the powers of a civil court in the execution of a money decree under the Code of Civil Procedure 1908. Section 174 was not repealed, so the claimant now has a choice: execution by the Tribunal itself, or a certificate to the Collector.

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For death or grievous hurt in a motor accident the owner or the insurer must pay five lakh or two and a half lakh rupees, and the claimant need not plead or prove that anybody was at fault.

Read the numbers of the sections before the words. Almost every textbook and every past paper on this subject calls this "section 140". Section 140 was repealed with effect from 1 April 2022, along with the whole of Chapter X and with sections 163A and 163B and the Second Schedule. The provision in force is section 164, and the section that used to bear that number, the Central Government's rule-making power, is now section 164C. This chapter states the law as it is and then states the law as it was, because a student must be able to read both the syllabus and the old judgments.

The law in force: section 164

Sub-section (1). Notwithstanding anything in this Act or any other law or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay, in the case of death or grievous hurt due to any accident arising out of the use of a motor vehicle, a compensation of

• five lakh rupees in the case of death,
• two and a half lakh rupees in the case of grievous hurt,

to the legal heirs or the victim, as the case may be.

Sub-section (2). In any claim under sub-section (1) the claimant shall not be required to plead or establish that the death or grievous hurt was due to any wrongful act or neglect or default of the owner of the vehicle, or of the vehicle concerned, or of any other person.

Sub-section (3). Where compensation has been paid under any other law for the time being in force in respect of the same death or grievous hurt, that amount shall be reduced from the amount payable under this section.

Three changes from the old law worth marking. The trigger is now grievous hurt and not "permanent disablement"; the sums are ten times what they were; and both the owner and the authorised insurer are named as liable.

How it reaches the claimant. Section 149 obliges the insurer to offer settlement on the accident information report prepared by the police under section 159, and by the second proviso to section 166(1) a claimant who accepts compensation under section 164 through that procedure has his claims petition before the Tribunal lapse. A claimant who wants more litigates for just compensation instead, and what has been paid is set off.

Section 164A: interim relief

The Central Government may make schemes for the provision of interim relief to claimants praying for compensation under Chapter XI. A scheme so made must also provide the procedure to recover the funds disbursed under it from the owner of the motor vehicle out of whose use the claim arose, or from such other sources as may be prescribed.

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Where the vehicle cannot be identified the State pays fixed compensation through a revenue officer, not through a Tribunal; and every insurer must fund cashless treatment in the first hour after the injury.

What a hit and run motor accident is

Section 145(d) defines it: an accident arising out of the use of a motor vehicle or motor vehicles the identity whereof cannot be ascertained in spite of reasonable efforts for the purpose.

Two words carry the definition. The vehicle, not the driver, must be unidentified; and reasonable efforts must have been made. A vehicle that speeds away but is traced by its number is not a hit and run case, and the ordinary claim before the Tribunal lies.

Section 161: what is paid, and by whom

Sub-section (1). Notwithstanding anything in any other law or instrument having the force of law, the Central Government shall provide for paying compensation in respect of the death of, or grievous hurt to, persons resulting from hit and run motor accidents.

Sub-section (2): the figures.

Sub-section (3): the scheme. The Central Government may by notification make a scheme specifying how it is administered, by the Central Government or the General Insurance Council; the form, manner and time for applications; the officers or authorities to whom applications may be made; the procedure for considering and passing orders; and all connected matters.

Sub-section (4): what a scheme may provide. Interim relief of such sum as the Central Government may prescribe; that contravention of the scheme is punishable with imprisonment up to two years, or fine not less than twenty-five thousand and up to five lakh rupees, or both; and delegation of powers with the Central Government's prior written approval.

The Scheme of 2022

The Compensation to Victims of Hit and Run Motor Accidents Scheme 2022 was made under section 161, in supersession of the Solatium Scheme 1989, and came into force on 1 April 2022.

Who decides.

• Claims Enquiry Officer: the Sub-Divisional Officer, Tehsildar, or other officer in charge of the revenue sub-division of a taluka, or an officer of that rank specified by the State Government.
• Claims Settlement Commissioner: the District Magistrate, Deputy Commissioner, Collector or other officer in charge of a revenue district, appointed as such by the State Government.

The steps.

1. The applicant submits Form I, including by electronic means, with any hospital claim under the cashless treatment scheme and the undertaking in Form IV, to the Claims Enquiry Officer of the sub-division or taluka in which the accident took place.
2. That officer obtains the First Accident Report and, where relevant, the post mortem report, holds an enquiry, and submits a report in Form II to the Claims Settlement Commissioner as early as possible and within one month of receiving the application; a report returned for further enquiry is resubmitted within fifteen days.
3. The Claims Settlement Commissioner sanctions the claim as far as possible within fifteen days of receiving the report, communicating the sanction in Form III, and deducts what the hospital has claimed for treatment.
4. The General Insurance Council makes e-payment to the claimant's bank account within fifteen days of the sanction order, extendable by a further thirty days for reasons recorded in writing.
5. If the Claims Enquiry Officer does not accept the grounds advanced, he must record a speaking order and communicate the reasons.

In one line

No motor vehicle may be used in a public place unless a policy is in force covering death, bodily injury and third-party property damage arising out of its use, and the certificate of insurance binds the insurer even where the policy does not.

Why the Chapter exists

An award against a driver who has nothing is a piece of paper. The whole architecture of Chapter XI is designed so that there is always somebody solvent behind the wheel. In National Insurance Co. Ltd v. Swaran Singh, (2004) 3 SCC 297, the Supreme Court put it in a sentence a student should be able to reproduce: the Chapter providing compulsory insurance of vehicles against third-party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by the use of motor vehicles, and its provisions must be interpreted so as to effectuate that object.

Section 145: the definitions that matter

• "authorised insurer": an insurer carrying on general insurance business in India and registered by the Insurance Regulatory and Development Authority of India, and any Government insurance fund authorised under the General Insurance Business (Nationalisation) Act 1972.
• "certificate of insurance": a certificate issued by an authorised insurer under section 147, including a cover note complying with the prescribed requirements.
• "grievous hurt": the same meaning as in section 320 of the Indian Penal Code.
• "hit and run motor accident": worked in chapter [Hit and Run, and the Golden Hour].
• "property": includes roads, bridges, culverts, causeways, trees, posts, milestones, and the baggage of passengers and goods carried in any motor vehicle.
• "third party": includes the Government, the driver and any other co-worker on a transport vehicle.

The last definition is the one examiners like. The driver of the vehicle is, for this Chapter, a third party.

The reference to section 320 of the Indian Penal Code has not been updated: since 1 July 2024 grievous hurt is defined by section 116 of the Bharatiya Nyaya Sanhita 2023, and section 8(1) of that Sanhita provides that a reference in any other law to a repealed provision is to be construed as a reference to the corresponding provision of the Sanhita.

Section 146: the prohibition

Sub-section (1). No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force, in relation to that use, a policy of insurance complying with the requirements of the Chapter.

Proviso. A vehicle carrying, or meant to carry, dangerous or hazardous goods must also have a policy under the Public Liability Insurance Act 1991, which is chapter [The Public Liability Insurance Act 1991].

In one line

The insurer must offer settlement within thirty days, must satisfy the award even if it could have avoided the policy, may resist only on a closed list of grounds, and if it proves one of them it still pays the victim and recovers from the insured.

The numbers moved. Until 31 March 2022 the insurer's duty to satisfy awards, and the list of defences, were section 149, and every judgment before that date says so. Since 1 April 2022 they are section 150, and section 149 is the new provision on settlement. Section 170 was amended to follow the change. When you read Swaran Singh speaking of section 149(2), read section 150(2).

Section 149: settlement, in thirty days

(1) On receiving information of the accident, from the claimant, through the accident information report under section 159, or otherwise, the insurance company shall designate an officer to settle the claims relating to that accident.

(2) The designated officer may make an offer to the claimant for settlement before the Claims Tribunal, giving such details, within thirty days, and following such procedure as the Central Government may prescribe.

(3) If the claimant

• accepts the offer, the Claims Tribunal records the settlement, the claim is deemed settled by consent, and the insurance company pays within a maximum of thirty days from the date of receipt of the record of settlement;
• rejects it, the Claims Tribunal fixes a date of hearing to adjudicate the claim on merits.

Section 149 is the hinge of the 2022 reform. Read it with the second proviso to section 166(1), by which a claimant who accepts compensation under section 164 through this procedure has his claims petition lapse, and with section 153(2), by which the Tribunal must satisfy itself that a settlement is bona fide, was not made under undue influence, and follows the section 164 schedule.

Section 150: the duty to satisfy awards

Sub-section (1). Where a certificate of insurance has been issued under section 147(3) and a judgment or award is obtained against a person insured by the policy, in respect of a liability required to be covered under section 147(1)(b) and covered by the terms of the policy, or under section 164, then notwithstanding that the insurer may be entitled to avoid or cancel, or has avoided or cancelled, the policy, the insurer shall pay to the person entitled to the benefit of the award any sum not exceeding the sum assured, as if that person were the decree holder, together with costs and interest.

"Notwithstanding that the insurer may be entitled to avoid or cancel the policy" is the heart of compulsory insurance. As between insurer and insured the policy may be worthless; as against the victim it still pays.

Why these five chapters exist

The syllabus examines one part of the Motor Vehicles Act 1988: motor accident claims and Claims Tribunals. The Act has two hundred and seventeen sections, and the rest of it is the regulatory law of the road. This chapter and the four that follow set out what those sections do, in outline, so that a student who is asked "what else is in this Act" has an answer, and so that a student who meets one of these numbers in a judgment knows where it sits.

These five chapters state the arrangement and effect of the sections as they appear in the official consolidation of the Act. The provisions rewritten with effect from 1 April 2022, that is Chapters X, XI and parts of XII, are worked out in full in the chapters before this one.

What Chapter II is for

Sections 3 to 28 answer one question: who may drive, and on what authority. It matters for this subject because a breach of these provisions is what an insurer usually pleads under section 150(2)(a)(ii), and because the licensing standard is part of the standard of care in negligence.

The obligation and the age limits

Section 3. No person shall drive a motor vehicle in a public place unless he holds an effective driving licence authorising him to drive that vehicle; and no person shall drive a transport vehicle, other than a motor cab or motor cycle hired for his own use or rented under a scheme under section 75(2), unless the licence specifically entitles him to do so.

Section 4: age.

No learner's or driving licence may be issued for a class of vehicle the applicant is not eligible to drive under this section.

Section 5: the owner's own duty. No owner or person in charge shall cause or permit a person who does not satisfy section 3 or section 4 to drive the vehicle.

Section 5 is the provision behind National Insurance Co. Ltd v. Swaran Singh, (2004) 3 SCC 297. The insurer's defence is not that the driver was unlicensed but that the owner permitted him to drive, and that is why the Supreme Court required proof that the owner failed to take reasonable care.

Getting and keeping a licence

• Section 6. One driving licence only, apart from a learner's licence or a licence under section 18; a licence may not be lent.
• Section 7. A learner's licence for a transport vehicle requires a light motor vehicle licence held for at least one year, except for an e-cart or e-rickshaw; a person under eighteen needs the written consent of the person having his care for a motor cycle without gear.
• Sections 8 and 9. Grant of the learner's licence and of the driving licence, on application to a licensing authority of the State where the applicant ordinarily resides or carries on business, or where the driving school under section 12 is situated.
• Section 10. The form and contents of licences, and the classes of vehicle.
• Section 11. Additions to a licence.
• Section 12. Licensing and regulation of driving schools.
• Sections 13 to 15. The extent of effectiveness of a licence, its currency, and its renewal.

Two chapters of the Act in one

Chapter III, sections 29 to 38, licenses the conductor of a stage carriage. Chapter IV, sections 39 to 65, registers the vehicle. Chapter II licensed the driver; between them the three chapters make sure that every vehicle on the road, and every person in charge of it, is identified on a public record.

Chapter III: the conductor's licence

• Section 29. No person shall act as a conductor of a stage carriage unless he holds an effective conductor's licence authorising him to do so, and no person shall employ or permit an unlicensed person to act as one. A State Government may prescribe conditions on which this does not apply to a driver performing a conductor's functions, or to a person employed as a conductor for not more than one month.
• Section 30. Grant of the licence.
• Section 31. Disqualifications for its grant.
• Section 32. Revocation on the ground of disease or disability.
• Section 33. Orders refusing a licence, and appeals.
• Sections 34 and 35. Power of the licensing authority, and of a court, to disqualify.
• Section 36. Certain provisions of Chapter II apply to a conductor's licence.
• Section 37. Savings.
• Section 38. Rules by the State Government.

Why an Act about compensation should license a conductor becomes clear in section 145(i) of the insurance Chapter, which includes "any other co-worker on a transport vehicle" in the definition of a third party. The conductor is both a regulated person and, if injured, a claimant.

Chapter IV: registration of the vehicle

The obligation.

• Section 39. No person shall drive, and no owner shall cause or permit the driving of, a motor vehicle in any public place or in any other place unless it is registered under the Chapter, its certificate of registration has not been suspended or cancelled, and it carries a registration mark displayed in the prescribed manner. A vehicle in the possession of a dealer is excepted on the prescribed conditions.
• Sections 40 and 41. Where registration is to be made, and how.
• Section 42. Special provision for the vehicles of diplomatic officers.
• Section 43. Temporary registration.
• Section 44. Production of the vehicle at the time of registration.
• Section 45. Refusal of registration or of renewal of the certificate.

Moving, selling, altering.

• Section 46. Registration is effective throughout India.
• Sections 47 to 49. Assignment of a new registration mark on removal to another State, the no objection certificate, and change of residence or place of business.
• Section 50. Transfer of ownership, and the duties of transferor and transferee to report it.
• Section 51. Vehicles subject to a hire-purchase, lease or hypothecation agreement.
• Section 52. Alteration in a motor vehicle, including alterations for a person with a physical defect or disability, which is how the definition of an "adapted vehicle" in section 2(1) works.

Two chapters of the Act in one

Chapter V, sections 66 to 96, controls transport vehicles: nobody may carry passengers or goods for hire or reward without a permit. Chapter VI, sections 97 to 108, is the special law of State transport undertakings, under which a State may take a route or an area for its own buses.

Chapter V: permits

Section 66: the obligation. No owner of a motor vehicle shall use, or permit the use of, the vehicle as a transport vehicle in any public place, whether or not it is actually carrying passengers or goods, except in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or a prescribed authority. Provisos let a stage carriage permit authorise use as a contract carriage, and in stated circumstances as a goods carriage.

• Section 66A. National Transportation Policy, to be developed and implemented by the Central Government.
• Section 66B. No bar against permit holders applying for and holding licences under schemes.
• Section 67. Power of the State Government to control road transport.
• Section 68. Transport Authorities: the State Transport Authority and Regional Transport Authorities.

Applying and granting.

• Section 69. General provision as to applications for permits.
• Sections 70 to 72. Stage carriage permits: application, the Regional Transport Authority's procedure, and grant.
• Sections 73 and 74. Contract carriage permits: application and grant.
• Section 75. Scheme for the renting of motor cabs, the scheme referred to in section 3(1).
• Section 76. Private service vehicle permits.
• Sections 77 to 79. Goods carriage permits: application, consideration and grant.
• Section 80. Procedure in applying for and granting permits.

Living with a permit.

• Section 81. Duration and renewal.
• Section 82. Transfer of a permit.
• Section 83. Replacement of vehicles.
• Section 84. General conditions attaching to all permits.
• Section 85. General form of permits.
• Section 86. Cancellation and suspension of permits.
• Section 87. Temporary permits.
• Section 88. Validation of permits for use outside the region in which granted, including national and inter-State permits.
• Section 88A. Power of the Central Government to make schemes for national, multimodal and inter-State transport of passengers and goods.

Disputes, drivers and jurisdiction.

• Sections 89 and 90. Appeals and revision.
• Section 91. Restriction of hours of work of drivers.
• Section 92. Voidance of contracts restrictive of liability.
• Section 93. An agent, canvasser or aggregator must obtain a licence.
• Section 94. Bar on jurisdiction of civil courts over matters the Transport Authorities may decide.
• Sections 95 and 96. Rules by the State Government.

Two of these matter directly to this subject. Section 91 limits driving hours, and a breach of it is the sort of fact on which negligence against an employer is built. Section 92 voids a contract by which a passenger or goods owner purports to give up the liability of the carrier, which is why a bus ticket cannot exclude liability for injury.

Three chapters of the Act in one

Chapter VII, sections 109 to 111, is about the vehicle: how it must be built and kept. Chapter VIII, sections 112 to 138, is about the road: speed, weight, signs, signals, helmets and what a driver must do when an accident happens. Chapter IX, section 139, is about vehicles temporarily leaving or visiting India.

Of all the sections outside the claims machinery, the ones in this chapter come closest to the law of tort, because they state, in statutory form, a good deal of what a reasonable driver is expected to do.

Chapter VII: construction and maintenance

• Section 109. General provision regarding the construction and maintenance of vehicles: every vehicle must be so constructed and maintained as to be at all times under the effective control of the person driving it.
• Section 110. Rules by the Central Government on construction, equipment and maintenance, including brakes, lights, emission standards, safety glass and much else.
• Section 111. Rules by the State Government.

Chapter VIII: control of traffic

Speed, weight and use.

• Section 112. Limits of speed.
• Section 113. Limits of weight and limitations on use.
• Section 114. Power to have a vehicle weighed.
• Section 115. Power to restrict the use of vehicles on specified roads.

Signs and places.

• Section 116. Power to erect traffic signs.
• Section 117. Parking places and halting stations.
• Section 118. Driving regulations, made by the Central Government.
• Section 119. Duty to obey traffic signs.

On the vehicle.

• Section 120. Vehicles with left hand control.
• Section 121. Signals and signalling devices.
• Section 122. Leaving a vehicle in a dangerous position.
• Section 123. Riding on the running board, and the like.
• Section 124. Prohibition against travelling without a pass or ticket.
• Section 125. Obstruction of the driver.
• Section 126. Stationary vehicles.
• Section 127. Removal of motor vehicles abandoned or left unattended in a public place.

Safety of riders.

• Section 128. Safety measures for drivers and pillion riders.
• Section 129. Wearing of protective headgear.
• Section 130. Duty to produce the licence and the certificate of registration.
• Section 131. Duty of the driver to take precautions at an unguarded railway level crossing.

When something happens.

• Section 132. Duty of the driver to stop in certain cases.
• Section 133. Duty of the owner to give information.
• Section 134. Duty of the driver in case of accident and injury to a person.
• Section 134A. Protection of Good Samaritans.
• Section 135. Schemes to be framed for the investigation of accident cases and for wayside amenities.
• Section 136. Inspection of a vehicle involved in an accident.
• Sections 137 and 138. Rules by the Central and State Governments.

Two chapters of the Act in one

Chapter XIII, sections 177 to 210D, is the criminal law of the road: what is punishable, by how much, and by what procedure. Chapter XIV, sections 211 to 217A, is the miscellaneous Chapter, which includes the repeal of the Act of 1939.

Keep the two jurisdictions apart. A conviction under Chapter XIII does not compensate anybody, and an award under Chapter XII does not punish anybody. A driver may be acquitted of rash driving and still be found negligent by a Claims Tribunal, because the standards of proof differ.

The shape of Chapter XIII

The general provisions.

• Section 177. Punishment where no other penalty is provided: fine of five hundred rupees for a first offence and one thousand five hundred rupees for a subsequent one, both raised by the amending Act of 2019.
• Section 177A. Contravention of the driving regulations made under section 118: fine of not less than five hundred and up to one thousand rupees.
• Section 199B. The fines in the Act may be increased annually on 1 April by up to ten per cent, as notified by the Central Government.

Section 199B is the answer to the question a student always asks about penal figures in an old statute. Parliament built inflation into the Act rather than leaving the fines to decay.

Offences about licences and authority.

• Section 178. Travelling without a pass or ticket; dereliction of duty by a conductor; refusal to ply a contract carriage.
• Section 179. Disobedience of orders, obstruction and refusal of information: two thousand rupees.
• Section 180. Allowing an unauthorised person to drive: five thousand rupees.
• Section 181. Driving in contravention of section 3 or section 4, that is, without a licence or under age: five thousand rupees.
• Section 182. Offences relating to licences: ten thousand rupees.
• Sections 182A and 182B. Offences relating to the construction, maintenance, sale and alteration of vehicles and components, and contravention of section 62A.

Offences about the driving itself.

• Section 183. Driving at excessive speed, now including causing an employee or a person under one's control to do so, with fines graded by class of vehicle.
• Section 184. Dangerous driving, extended in 2019 to driving which causes a sense of alarm or distress to the occupants of the vehicle, other road users and persons near roads, and punishable on a first offence with imprisonment of six months to one year, or a fine of one thousand to five thousand rupees, or both, and on a subsequent offence with a fine of ten thousand rupees. An Explanation lists conduct that amounts to dangerous driving, beginning with jumping a red light.
• Section 185. Drunken driving, or driving under the influence of drugs: a fine of ten thousand rupees, and of fifteen thousand for a subsequent offence.
• Section 186. Driving when mentally or physically unfit.
• Section 187. Offences relating to an accident, that is, breach of the duties in sections 132(1), 133 and 134: imprisonment up to six months or a fine of five thousand rupees for a first offence, and up to one year or ten thousand rupees for a subsequent one.
• Section 188. Abetment of certain offences.
• Section 189. Racing and trials of speed on a public place without the written consent of the State Government.
• Section 190. Using a vehicle in an unsafe condition.
• Sections 192 and 192A. Using a vehicle without registration, and without a permit.
• Section 193. Agents and canvassers without proper authority.