BLS LLB 5 Years Sem 5 Torts 2024-25 - ATKT 60/40 Question Paper with Solutions

Accord and satisfaction is a mode by which tortious liability is discharged. Accord is the agreement by which the person injured agrees to accept some consideration in place of his right of action; satisfaction is the actual payment or performance of that consideration.

Both are required: an accord without satisfaction is no discharge, because the promise to accept does not extinguish the claim until what was promised has been given.

Ubi jus ibi remedium means "where there is a right, there is a remedy", commonly rendered as there is no wrong without a remedy. Jus means the legal right to be protected, remedium the right of action by which it is enforced. Wherever the law confers a right, it also confers the means of vindicating it.

Ashby v White (1703) is the leading case: a returning officer wrongfully refused a qualified elector's vote; the candidate he supported won anyway; Holt CJ held the action lay, because want of right and want of remedy are reciprocal.

The scienter rule fixes the liability of the keeper of an animal for damage done by it, and turns on his knowledge of the animal's dangerous disposition; scienter means "knowingly".

Animals are divided into two classes. For animals ferae naturae, of a naturally dangerous species such as a lion, tiger, elephant, bear or monkey, knowledge of the vicious propensity is conclusively presumed and the keeper is strictly liable. For animals mansuetae naturae, of a harmless domestic species such as a dog, horse or cow, the keeper is liable only if the plaintiff proves he knew of the vicious propensity of that particular animal.

5. goods or services which are hazardous or likely to be hazardous to life and safety are being offered for sale in contravention of the provisions of any law requiring traders or service providers to display information or to take action to prevent such hazard; or
6. a claim for product liability action lies against the product manufacturer, product seller or product service provider.

Waiver is one of the modes by which tortious liability is discharged. Where a person injured by a wrong has two or more alternative remedies and elects to pursue one of them, he is taken to have abandoned the other and cannot afterwards fall back on it.

The classic instance is waiver of tort: where the tort has resulted in a gain to the wrongdoer, for example a conversion of the plaintiff's goods which the wrongdoer has sold, the plaintiff may waive the tort and sue instead in quasi-contract for money had and received.

A right in rem is a right available against the world at large, that is against persons generally, and correlating to a duty imposed on everyone not to interfere with it. A right in personam is a right available only against a definite person or persons, and correlating to a duty imposed on that person alone.

The distinction is fundamental to the definition of a tort. Duties in tort are fixed by law and owed to persons generally, so the rights they protect are rights in rem; duties in contract are fixed by the parties and owed only to the other party, so the rights they protect are rights in personam.

The remedies for a tort are of two kinds: judicial remedies, obtained by an action in a court, and extra-judicial remedies, which the injured party may take by his own act without approaching a court, also called self-help.

A. Judicial remedies.

1. Damages, the principal remedy. In tort they are unliquidated, assessed on the principle of restitutio in integrum. The kinds are nominal (Ashby v White, 1703), contemptuous, compensatory, aggravated, exemplary or punitive (Rookes v Barnard, 1964), prospective, and general and special. The controls are causation, remoteness (The Wagon Mound, 1961), the eggshell skull rule (Smith v Leech Brain, 1962) and mitigation.

2. Expulsion of a trespasser, using reasonable force, after a request to leave and a reasonable opportunity to comply.
3. Re-entry on land by a person wrongfully dispossessed, peaceably and without a breach of the peace.
4. Recaption of goods: retaking one's own chattel from the wrongdoer, peaceably; entry on the wrongdoer's land is permitted, on an innocent third party's land only after request and refusal.
5. Abatement of nuisance: removing or ending the nuisance oneself, on notice except in an emergency, doing no more damage than is necessary, and choosing the less mischievous of two methods.
6. Distress damage feasant: seizing and detaining a chattel or animal which has strayed onto one's land and done damage there, until compensation is paid. It is a right of detention only; the thing may not be used or sold, and an animal must be fed and cared for.

Proof. Under Section 38(2)(c) the Commission may, where the defect cannot be determined without a proper analysis, obtain a sample, seal and authenticate it and send it to an appropriate laboratory as defined in Section 2(2), the report being furnished to both sides and objections heard.

B. Deficiency in service.

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 for the time being in force, or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service, and includes:

1. any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and
2. deliberate withholding of relevant information by such person to the consumer.

D. Reliefs. Section 39 allows the Commission to order removal of the defect, replacement, return of the price, compensation including punitive damages, removal of the deficiency, discontinuance of an unfair trade practice, withdrawal of hazardous goods, a corrective advertisement, and costs.

In English law libel is actionable per se while slander requires proof of special damage, save in four cases: an imputation of a criminal offence punishable with imprisonment; of a contagious or infectious disease; of unchastity or adultery to a woman or girl (Slander of Women Act, 1891); and of unfitness, dishonesty or incompetence in any office, profession, calling, trade or business.

In India the distinction is of little practical importance, and the High Courts have generally held slander also actionable per se, following Hirabai Jehangir v Dinshaw Edulji (ILR 1927 Bom 167). Under Section 499 of the Indian Penal Code both are equally the offence of defamation.

2. Direct defamation and defamation by innuendo. Words may be defamatory on their face, or by innuendo, that is by a secondary meaning conveyed to persons who know extrinsic facts, which the plaintiff must plead and prove, together with publication to persons who knew them.

3. Civil and criminal defamation. In India defamation is both a tort, redressed by damages and injunction, and an offence under Sections 499 and 500 of the Indian Penal Code, upheld in Subramanian Swamy v Union of India (2016) 7 SCC 221.

Case law.

Definition. Nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it. The word comes from the French nuire, to injure.

Nuisance and trespass distinguished. Trespass is a direct interference with possession and is actionable per se; nuisance is a consequential interference with enjoyment and generally requires proof of damage. Throwing stones onto a neighbour's land is trespass; allowing tree roots to spread under it is nuisance.

Kinds.

Case law on reasonableness.

St Helen's Smelting Co v Tipping (1865) 11 HL Cas 642: fumes from the defendant's copper works damaged the plaintiff's trees and shrubs. The House of Lords drew the fundamental distinction: where the nuisance causes material injury to property, the character of the locality is no defence; where it causes only personal discomfort, the locality is highly relevant.

Sturges v Bridgman (1879) 11 Ch D 852: a confectioner had used noisy pestles for more than twenty years; a physician then built a consulting room at the end of his garden and found the noise intolerable. Injunction granted, and the plea of prescription failed, because the twenty years run from the date the activity became a nuisance to the plaintiff. Thesiger LJ: what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.

Robinson v Kilvert (1889) 41 Ch D 88: heat from the defendant's cellar damaged the plaintiff's exceptionally sensitive brown paper but would not have harmed ordinary paper. No nuisance: a plaintiff cannot complain of an interference which troubles him only because of an abnormal sensitivity.

She was a lawful visitor, an invitee for the purposes of business, on premises where repairs were being carried on. Raju, as occupier, owed her a duty to take reasonable care that the premises were reasonably safe for the purpose for which she was invited, and that duty is not discharged merely by handing the work over. Glass falling from a roof onto a customer standing in the shop is a plain breach.

Her damage is a severe shock, and two points must be made about it:

1. If the glass struck her, as the problem says, she suffered physical impact, and the shock is simply a consequence of a physical injury. No special rules apply: she recovers for the injury and for the nervous shock flowing from it as part of her damages.
2. Even if the shock had been suffered without impact, she would recover, because she was within the area of foreseeable physical danger. Dulieu v White and Sons (1901) allowed recovery to a pregnant barmaid who suffered shock when a horse van was driven into the public house where she was serving, because she feared for her own safety. In the modern vocabulary she is a primary victim, and for a primary victim it is enough that physical injury was foreseeable; the shock need not itself have been foreseeable: Page v Smith (1996).

Ravi's claim is therefore an independent claim in his own right, not derivative from Rani's, and it covers the injury to his leg and the loss flowing from it.

A caution about relational shock. If Ravi were claiming only for nervous shock at seeing his wife injured, and had suffered no physical injury, he would be a secondary victim and would have to satisfy the control mechanisms in Alcock v Chief Constable of South Yorkshire (1992): a close tie of love and affection, proximity in time and space to the event or its immediate aftermath, and perception by his own unaided senses. He would satisfy all three, being the husband and present at the scene. But he does not need that route, because he suffered a physical injury as a rescuer.

Remedies. Damages for medical expenses, pain and suffering, loss of amenity and loss of earnings, on the principle of restitutio in integrum.

ii) Who is liable in this case? Why?

Mr. Raju is liable, on three independent grounds. The servant is also personally liable for his own negligence.

3. If the workman was an independent contractor rather than a servant, Raju is still liable, for two reasons. He is liable where the duty is non-delegable, which the occupier's duty to lawful visitors is; and he is liable where the work is of a kind necessarily involving danger to persons nearby unless precautions are taken, which is the principle of Tarry v Ashton (1876), the lamp overhanging the footway, and Penny v Wimbledon Urban District Council (1899), the unlighted heaps of soil in a road under repair.

Under the Consumer Protection Act, 2019 there is an additional route. Rani was a consumer, having gone to the shop to buy goods, and injury caused on the seller's premises through his want of care may found a complaint of deficiency in service under Section 2(11), which now expressly includes any act of negligence or omission or commission causing loss or injury.

No defence assists Raju. Volenti fails: neither Rani nor Ravi consented to anything, and a rescuer is not a volunteer. Contributory negligence fails: Rani was standing where customers are invited to stand, and Ravi acted reasonably in an emergency. Inevitable accident fails, because the problem states the fall was due to negligence.

That fits these facts exactly. The manufacturer claimed the product was very safe; the evidence shows the opposite; and testing on rats produced tumours while experimental use on women showed an enhanced possibility of cancer. Far from lacking an adequate test, the manufacturer had tests pointing the other way.

Section 2(47)(i)(i) and (iv) are also attracted: falsely representing that goods are of a particular standard or quality, and representing that they have characteristics or benefits which they do not have.

2. Misleading advertisement.

Section 2(28) defines a "misleading advertisement" as one which falsely describes a product, gives a false guarantee likely to mislead the consumer as to its nature, substance, quantity or quality, conveys a representation which would constitute an unfair trade practice, or deliberately conceals important information. Concealing that the product had produced tumours in rats is concealment of the most material information there could be.

Independently, at common law, the manufacturer owes the ultimate consumer a duty of care under Donoghue v Stevenson (1932), and a manufacturer who markets a product knowing of test results indicating a risk of cancer, without warning, is negligent in the plainest sense. The English case on facts of this kind is Watson v Buckley, Osborne, Garrett and Co Ltd (1940), where a hair dye containing an excessive proportion of a chemical caused dermatitis and the distributors, who had made representations about its safety without testing it, were held liable.

Also attracted: the Drugs and Cosmetics Act, 1940 and the Rules made under it, which regulate the manufacture and labelling of cosmetics and prohibit misbranded and spurious cosmetics.

ii) what kind of remedy available to a consumer and who can file the complaint under the Consumer Protection Act, 1986?

The remedies.

A consumer who has bought or used the dye may complain to the District Commission under Section 35, and under Section 39 the Commission may order:

1. return of the price or charges paid;
2. compensation for the loss or injury suffered, including for pain, medical treatment and mental agony, and punitive damages;

The question names the 1986 Act, and under Section 2(1)(b) of that Act a "complainant" meant (i) a consumer; (ii) a registered voluntary consumer association; (iii) the Central Government or any State Government; (iv) one or more consumers, where there are numerous consumers having the same interest; and (v) on the death of a consumer, his legal heir or representative.

Under the 2019 Act, Section 2(5) carries all five forward and adds (vi) the Central Consumer Protection Authority, and (vii) in the case of a minor, his parent or legal guardian.

For a case of this kind the two that matter are the voluntary consumer association, which need not itself be a consumer of the product, and the class complaint by numerous consumers having the same interest, which under Section 35(1)(c) requires the permission of the Commission.

Held. The defendant was liable. Parke B put it that although the ass may have been wrongfully on the highway, the defendant was bound to go along the road at such a pace as would be likely to prevent mischief; were it otherwise, a man might justify driving over goods left on a public highway, or over a man lying asleep there, or purposely running against a carriage going on the wrong side of the road.

The principle. Whichever party had the last opportunity of avoiding the accident by the exercise of ordinary care is liable for the whole loss. Here B had that opportunity: the donkey was stationary and visible, and B was driving at a high speed. His negligence was the effective and immediate cause of the collision.

A's own negligence does not defeat him. At common law contributory negligence was a complete defence (Butterfield v Forrester, 1809), and the last opportunity rule was invented precisely to soften that. Under the modern law of apportionment the position is even clearer: A's claim is not defeated, and his damages are reduced to the extent the court thinks just and equitable having regard to his share in the responsibility.

A's cause of action is negligence, and his damage is the value of the donkey.

• In England the Law Reform (Contributory Negligence) Act, 1945 replaced the all-or-nothing rule with apportionment.
• In India there is no general statute, and the courts apply apportionment as a rule of justice, equity and good conscience: Municipal Corporation of Greater Bombay v Laxman Iyer (2003) 8 SCC 731, which also holds that the last opportunity rule now survives only as one way of deciding whose negligence was the effective cause.

So B should plead contributory negligence and will succeed in reducing the award, perhaps substantially, but not in defeating it.

2. Inevitable accident: not available. An inevitable accident is one which could not have been avoided by ordinary care, caution and skill (Stanley v Powell, 1891). B was driving at a high speed at a stationary and visible obstruction; ordinary care would plainly have avoided the collision.

3. Act of God: not available. There is no operation of natural forces at all.

i) Can shopkeeper recover Rs. 30/- from consumer? Why?

No. The shopkeeper cannot recover Rs. 30, and he has no legal basis for demanding it.

1. There was no contract for the strawberry pulp. The consumer asked for mango pulp at Rs. 50 and paid that price. The offer and acceptance were for mango pulp; there was no agreement of any kind in respect of strawberry pulp at Rs. 80. A seller cannot unilaterally substitute a different article at a higher price and then claim the difference. Section 2(h) of the Indian Contract Act, 1872 requires an agreement enforceable by law, and there is none here.

4. Demanding the extra Rs. 30 is itself an offence against the Act. Under Section 2(6)(iv) of the Consumer Protection Act, 2019 it is a ground of complaint that a trader has charged for the goods a price in excess of the price fixed by or under any law, or displayed on the goods or on the package containing them, or displayed on the price list exhibited by him, or agreed between the parties. The price agreed was Rs. 50; a demand for Rs. 80 is a demand in excess of it. Rule 18 of the Legal Metrology (Packaged Commodities) Rules, 2011 additionally requires the retail sale price to be declared on the package and prohibits sale above it.

5. Refusing to take the goods back is a distinct unfair trade practice. Section 2(47)(vii), introduced in 2019, makes it an unfair trade practice to refuse, after selling goods, to take them back or withdraw the services and to refund the consideration within the period stipulated in the bill, or within thirty days where no period is stipulated.

ii) Advise consumer. On the same.

Step 1: preserve the evidence. Keep the tin, the wrapper, the label and the bill or cash memo. The label and the price declaration are the whole case. Photograph the sealed tin, the contents and the price marking.

Where and when. Before the District Commission where he resides or personally works for gain, under Section 34(2)(d), or where the shop carries on business, or where the cause of action arose. The value is well within the District Commission's pecuniary limit. The complaint must be filed within two years of the cause of action under Section 69.

What to ask for, under Section 39:

• return of the price of Rs. 50, or replacement with mango pulp of the same description free from defect;
• compensation for the loss and for the mental agony and harassment caused by the refusal;
• an order that the shopkeeper discontinue the unfair trade practice and not repeat it;
• punitive damages under Section 39(1)(d), the conduct being contumacious; and
• costs.

Other routes.

• A complaint to the Legal Metrology department under the Legal Metrology Act, 2009, for sale above the declared retail sale price and for wrong declaration on the package, which carries its own penalties.

Since Fowler v Lanning (1959) and Letang v Cooper (1965), trespass to the person requires an intentional act; a merely negligent interference is actionable in negligence, where damage must be proved.

B. Assault.

Definition. An act of the defendant which causes the plaintiff reasonable apprehension of the infliction of immediate and unlawful force upon his person.

Essentials: (i) an act creating a reasonable apprehension of immediate force; (ii) an apparent present ability to carry out the threat; (iii) intention to create that apprehension.

Pointing a loaded gun, advancing with a raised fist or a stick within reach, and throwing an object which just misses are assaults. Pointing an unloaded gun at a person who does not know it is unloaded is an assault, because the test is the apprehension reasonably created and not the actual danger.

Cole v Turner (1704) 6 Mod Rep 149: Holt CJ laid down that the least touching of another in anger is a battery; that if two people meet in a narrow passage and without any violence or design of harm one touches the other gently, it is no battery; but that if either uses violence to force his way in a rude or inordinate manner, it is a battery.

No harm need result. Throwing water on a person, spitting at him, snatching a book from his hand, pulling away his chair as he sits, and cutting his hair without consent are all batteries. Pursell v Horn (1838): throwing water was held a battery.

The word anger in Cole v Turner is not a requirement of hostility so much as of the absence of consent, which is why the ordinary jostling of a crowded train is not a battery, and a surgical operation performed without consent is, however skilful and however benevolent the motive.

D. Assault and battery distinguished.

1. Damages. Since these torts are actionable per se, the plaintiff recovers without proving loss. The heads are: nominal damages where the invasion is technical; compensatory damages for pain and suffering, medical expenses, loss of earnings and loss of amenity; aggravated damages where the manner of the wrong injured the plaintiff's dignity and feelings, which is common in these torts; and exemplary or punitive damages, especially against servants of the government acting oppressively, which is the first of the Rookes v Barnard (1964) categories and the one that most often applies to assaults and unlawful detentions by the police.
2. Injunction, to restrain a threatened or repeated assault, under Sections 37 to 39 of the Specific Relief Act, 1963, with a temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908.
3. A writ of habeas corpus under Article 32 or 226 of the Constitution, where a false imprisonment is continuing.

Extra-judicial remedies.

1. Self-defence, using reasonable and proportionate force;
2. Escape, in the case of an unlawful restraint.

Strict liability and absolute liability are both forms of liability without proof of fault, but they are distinct rules with different origins, different requirements and, above all, different exceptions.

A. Strict liability: the rule in Rylands v Fletcher (1868) LR 3 HL 330.

Facts. The defendant, a mill owner, engaged independent contractors, competent engineers, to construct a reservoir on his land to supply his mill. In the course of the work they came upon disused mine shafts filled with earth and did not block them properly. Neither they nor the defendant knew that the shafts communicated with the workings of the plaintiff's coal mine on adjoining land. When the reservoir was filled, water escaped down the shafts and flooded the mine. The defendant himself was not negligent.

Held. He was liable. Blackburn J, in the Exchequer Chamber:

2. Escape from a place in the defendant's occupation or control to a place outside it. Read v J Lyons and Co (1947) AC 156: an inspector injured by a shell exploding inside the defendant's munitions factory failed, because there was no escape. This requirement has confined the rule most severely.
3. Non-natural use of land. Rickards v Lothian (1913) AC 263: the ordinary domestic water supply to a lavatory basin is a natural use, so the defendant was not liable when a stranger blocked the waste pipe and flooded the plaintiff's premises below.

The five exceptions.

1. Plaintiff's own default, and damage due to the abnormal sensitivity of his property. Ponting v Noakes (1894): the plaintiff's horse reached over the boundary, ate leaves of the defendant's yew tree and died; no liability, there being no escape and the damage being due to the animal's own intrusion.
2. Act of God. Nichols v Marsland (1876): rainfall described as the heaviest in living memory carried away the defendant's ornamental lakes; not liable.
3. Consent of the plaintiff, covering the common benefit cases where the thing is kept for the benefit of both. Carstairs v Taylor (1871).

where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of that activity, the enterprise is strictly and absolutely liable to compensate all those who are affected, and such liability is not subject to any of the exceptions which operate against the rule in Rylands v Fletcher.

Two reasons were given: the enterprise alone has the resource to discover and guard against the hazards; and it is under an absolute and non-delegable duty to the community to ensure that no harm results from an activity it carries on for private profit.

The measure of damages. The compensation must be correlated to the magnitude and capacity of the enterprise, so that it has a deterrent effect.

C. The differences.

• Union Carbide Corporation v Union of India (1989 and 1991), the Bhopal litigation, and the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985.
• Indian Council for Enviro-Legal Action v Union of India (1996) 3 SCC 212, the Bichhri case, applying absolute liability to chemical units that had poisoned groundwater and adopting the polluter pays principle, under which the polluter must both compensate the victims and restore the environment.
• Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647, reading the precautionary principle and the polluter pays principle into Indian law as part of Articles 21, 47, 48A and 51A(g).
• The Public Liability Insurance Act, 1991, requiring occupiers handling hazardous substances to insure and giving no fault relief on a statutory scale.
• The National Green Tribunal Act, 2010, whose Section 17 provides for relief and compensation for death or injury caused by an accident involving a hazardous substance, applying the principle of no fault.

• (ii) falsely represents that services are of a particular standard, quality or grade;
• (iii) falsely represents any rebuilt, second-hand, renovated, reconditioned or old goods as new;
• (iv) represents that goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which they do not have;
• (v) represents that the seller or supplier has a sponsorship, approval or affiliation which he does not have;
• (vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
• (vii) gives to the public a warranty or guarantee of the performance, efficacy or length of life of a product or service not based on an adequate or proper test, the burden of proving that an adequate test was made lying on the person raising the defence;
• (viii) makes a representation purporting to be a warranty or guarantee, or a promise to replace, maintain or repair, where there is no reasonable prospect of it being carried out;

Society of Catalysts v Star Plus TV (2008) is the leading Indian decision: a television contest whose prize money came out of premium SMS charges was an unfair trade practice, because the viewers were in truth paying for a prize advertised as free.

4. Withholding from participants of a scheme offering gifts or prizes information about the final results of the scheme.

5. Non-compliant and unsafe goods. Permitting the sale or supply of goods intended to be used by consumers, knowing or having reason to believe that they do not comply with the standards prescribed by a competent authority relating to performance, composition, contents, design, construction, finishing or packaging as are necessary to prevent or reduce the risk of injury.

6. Hoarding, destruction and refusal to sell. Permitting the hoarding or destruction of goods, or the refusal to sell them or to provide a service, if such conduct is intended to raise the cost of those or similar goods or services.

7. Spurious goods and deceptive services. Manufacturing spurious goods or offering such goods for sale, or adopting deceptive practices in the provision of services. "Spurious goods" are defined in Section 2(43) as goods falsely claimed to be genuine.

• pay compensation for the loss or injury, including punitive damages;
• withdraw hazardous goods from sale and cease their manufacture;
• pay a sum, not less than twenty-five per cent of the value of the goods or services, to the Consumer Welfare Fund, where the loss has been suffered by a large number of consumers not readily identifiable; and
• pay costs.

D. The Central Consumer Protection Authority.

Sections 10 to 27 create the CCPA, whose object is to regulate matters relating to violation of consumer rights, unfair trade practices and false or misleading advertisements and to protect and enforce the rights of consumers as a class. Its relevant powers are:

• to inquire on its own motion, on a complaint, or on the Central Government's direction (Section 19), with an Investigation Wing under a Director General and powers of search and seizure (Sections 15 and 22);
• to order recall of unsafe goods, reimbursement of the price, and discontinuance of unfair practices (Section 20);

F. Guidelines. The CCPA (Prevention of Misleading Advertisements and Necessary Due Diligence for Endorsement of Advertisements) Guidelines, 2022 restrict surrogate advertising and bait advertising, regulate advertisements directed at children, and set out the due diligence expected of an endorser, including that he must have actually used the product.

• The Legal Representatives Suits Act, 1855: an action lies against the executors of a deceased wrongdoer for a wrong done to the property of another, within one year of the death.
• The Fatal Accidents Act, 1855: gives the wife, husband, parent and child of a person killed by a wrongful act a new and independent cause of action for their own loss of dependency.
• The Motor Vehicles Act, 1988, Chapters X to XII, provides its own machinery before the Motor Accidents Claims Tribunal.
• The Consumer Protection Act, 2019, Section 2(5)(v), allows a deceased consumer's legal heir or representative to complain.

The distinction that decides cases is between the surviving action, which belongs to the estate and is measured by what the deceased lost, and the Fatal Accidents Act claim, which belongs to the dependants and is measured by their loss of dependency on the multiplicand and multiplier method of Sarla Verma v Delhi Transport Corporation (2009) 6 SCC 121 and National Insurance Co Ltd v Pranay Sethi (2017) 16 SCC 680. Both may be brought and they do not duplicate.

2. Waiver.

4. Release.

The giving up of the right of action by the injured party's own act. Under English law a release required a deed; in India Section 63 of the Indian Contract Act, 1872 allows a promisee to dispense with or remit performance wholly or in part, so a release without consideration is effective. A release obtained by fraud or under a mistake as to a material fact, or where the releasor was ignorant of his rights, is not binding.

5. Acquiescence.

Where a person entitled to enforce a right stands by and allows another to act inconsistently with it, without objection and in circumstances in which he could and should have objected, he may be precluded from enforcing it. Acquiescence does not by itself extinguish a legal right, but it will ordinarily bar the equitable remedy of an injunction, and it is closely connected with laches, that is unreasonable delay.

6. Judgment recovered.

Once judgment has been obtained on a cause of action, that cause of action is merged in the judgment and cannot be sued on again: transit in rem judicatam. The rule is reinforced by:

• three years under the residuary Article 113, from the date the right to sue accrues, which governs negligence, nuisance, deceit and most other torts.

Three doctrines modify the periods:

• Section 22: in the case of a continuing tort, a fresh period runs at every moment during which the wrong continues. A single act of trespass gives one cause of action; leaving the object on the land is a continuing trespass;
• Section 6: time does not run against a person under a disability, that is a minor, an insane person or an idiot, until the disability ceases; and
• Section 17: where the suit is based on the fraud of the defendant, or knowledge of the right of action has been concealed by fraud, or the suit is for relief from a mistake, time runs only from discovery, or from when it could with reasonable diligence have been discovered.

Special statutes prescribe their own periods: two years under Section 69 of the Consumer Protection Act, 2019, and six months under Section 166(3) of the Motor Vehicles Act, 1988 as amended in 2019.