PAPER 5

UNIT 1

Q1)origin and development of tort?distinction between tort and crime and

contract?

Origin of Law of Torts

Prior to the French William the Conqueror’s 1066 Norman conquest of England,
the legal system was somewhat haphazard, conducted on a more-or-less case-by-
case basis. After 1066, eminent judges were delegated to travel about a given
region in order to absorb those village laws which had developed over two
centuries. Benefiting by this information, these judges noted and implemented
precepts they deemed most fair-minded into their own court findings. In time,
when referred to often enough, these cases became what are now called legal
precedents. Sessions during which these judges conducted trials were dubbed
"assizes", or in modern terms, “sittings". Even now, the place from which a judge
renders verdicts and sentences is called “the bench”. Once established, these
precedents were meant to be applied equally to every member of society, from a
lord to a serf, bringing about the term common law. After the Norman Conquest,
fines were paid only to courts or the king, and quickly became a revenue source. A
wrong became known as a tort or trespass, and there arose a division between
civil pleas and pleas of the crown.

The law of Torts in India came through England. After the Norman Conquest,
French became the spoken language in England’s judiciary and thus many of the
English law’s technical terms owe their origin to French and tort is one of them.
The term ‘tort’ is based on the concept that there are certain rights for everyone
in society. The purpose of this tort law was to enforce rights and duties.

Development of the Law of Torts in India

The Law of Torts is based on the principles of ‘Common Law‘ which is primarily
the English Law of Torts. The law of tort is selectively enforced in Indian courts if it
suits the circumstances of the Indian society.
In India, the term tort has existed since the pre-independence period. Tort did not
have such an important beginning under Hindu law and Muslim law compared to
English law. Most of the laws of tort in India is adopted from the English law of
Torts. However, the Indian courts before making any application of the laws
adopted from the English law of torts see whether it is compatible with Indian
culture and circumstances. Using the English law in India has thus had a distinctive
application.

In India, the origin of torts is related to Charter of 1726. Under charter 1726 the
English courts were established in three presidencies i.e. Bombay, Calcutta and
Madras which were known as ‘Mayor courts’. These courts were working under
‘Common law’ full stop in India also the common law was made applicable but the
directions were made to quotes that the common law is made applicable. In the
application of common law, in the application of common law, the principles of
equity, justice and good conscious were being followed. Law of torts was being
considered an inseparable part of the common law. This was made applicable in
India in this reference but due care was taken that it applied as per the
conditions, customs and traditions of India.

What are the reasons for the slow development of law of torts in India?

In view of the above, the stability of the law of torts in India is due to English law.
Since 1726, this law is made applicable in Indian courts, but the process of
development of it is very slow. The reasons for it are as follows: –

The Law is Not Codified: – The main reason for the slow development of the law
of torts in India is that is not codified. Due to this, there is always a problem of
uncertainty in front of the court. It is very difficult to decide which action comes
under tort and which are not torts. The decisions of courts are generally based on
precedents.

Ignorance of Law: – The second cause is ignorance of the law. People are not
aware of their legal rights. Most people are illiterate and are unaware of their
rights. This is the reason that they do not move to courts for justice even on
violation of their rights.
Poverty: – Poverty has also distant the development of the law of torts. A number
of people do not approach the Court due to poverty. They keep silence tolerating
humiliating experience of extradition and tannery. But now the efforts are made
so that a person may be deprived of justice due to the reasons of poverty.
Arrangements for free legal assistance have been made in paragraph 39(A) of the
constitution. Now the conception of public interest litigation is also contributed in
forwarding the applicability of the law of torts.

Lack of Political Will Power: – The formation of adequate law and their
implementation are not willfully desired by the political representatives, which is
also restaurant the development of the law of torts. The government is not
effective as it ought to be in reference to reference to law and Justice.

Expensive and Delaying Judicial System: – The process of Judiciary system is very
expensive and takes a long time in panting decision, therefore victims day to go to
quotes and is the cause of non-development of the law of torts.

Tort and Crime – Distinguished

(1) A tort is basically a private wrong, i.e. it is the infringement of a person’s right
in rem, in other words, it is an infringement of a personal right. While a crime is a
public wrong, i.e. is against the whole world and the state, it is an infringement of
rights in personam, in other words, it is an infringement of the public right.

(2) The remedy in the case of law of torts is in the form of damages, while in the
case of a crime, it is in terms of punishment.

(3) In the case of a tort, a suit is filed. Whereas, in the case of a crime, a complaint
is filed.

(4) Law of torts is an uncodified law whereas law of crimes is a codified law.

(5) In tort, intention is important but not in all cases, whereas in the case of
criminal law intention is the crux of the offence itself.
Example: A good example of this can be Assault, where the party who has been
assaulted can bring charges against the person who has assaulted him or her. Also
he or she can claim for damage in the civil courts under Tort law.

Torts and Breach of Contract – Distinguished

(1) In the case of a tort the duty is fixed by the law, whereas in the case of
contract the duty is fixed by the parties involved.

(2) In case of a tort, the duty is towards everyone in the society, whereas in the
case of a contract, the duty is towards specific individuals only.

(3) Motive is often taken into account in the case of a tort, while, in the case of a
contract, motive is irrelevant.

(4) Damages in the case of a tort are different under different circumstances,
whereas, in the case of a contract, the damages are in the form of compensation
for the loss suffered in peculiar form.

(5) In the case of a tort, intention is taken into consideration in some cases,
whereas, in the case of a breach of contract, intention is irrelevant.

Example : A father who employs a surgeon for the treatment of his minor son,
and if his son is injured by the surgeon’s carelessness. Here the father can sue the
surgeon for the breach of contract also, as there is no contract between the minor
son and the surgeon, the minor son can sue the surgeon(for the careless act
which amounts to negligence) in tort and can also put charges on the surgeon but
he cannot sue for the breach of contract.

Q2)meaning and definition of tort ?characteristics of it?scope and essentials

elements of it?

Tort is a civil wrong, i.e. it is a wrong against an individual. The word Tort is
derived from a Latin word ‘tortum’ which means crooked or twisted.in this sense,
it is equivalent to the English word ‘wrong.’ Law is divided into two – Civil and
Criminal. Civil Law is further divided into two – Tort and Contract. It is basically a
breach of the duty imposed by law. It is a violation of others’ legal rights. A tort
occurs when someone deliberately or through carelessness causes harm to
someone.

Salmond defined Torts as, “It is a civil wrong for which the remedy is common law
action for unliquidated damages and which is not exclusively the breach of the
contract or the breach of the trust or other merely equitable obligation.”

Winfield mentions, “Tortious liability arises from the breach of duty primarily
fixed by the law: this duty is towards the persons generally and its breach is
redressable by an action for unliquidated damages.”

Winfield and Salmond’s definition are contradictory to each other. Salmond’s

definition has the practical point of view while Winfield’s definition has the
theorist point of view. Lawyers prefer Salmond’s point of view but the students
prefer Winfield point of view. Also, Salmond’s view can be said to be narrower
one but Windfield’s view can be said to be a broader one.

Characteristics of a Tort

Tort is a private wrong that contravenes the legal right of an individual or a group.

The person who engages in tort is called “tort-feasor” or “Wrongdoer”.

The place of trial for tort is Civil Court.

Tort litigation is compoundable which means that the complainant can withdraw
the suit filed by him.

Tort is a specie of infringement (the act of breaking the terms of a law,

agreement, etc.; violation) of a person’s rights or civil wrong.

Scope of Tort Law/essentials elements

The main aim of implementing tort law was to use it as a tool to make people to
follow the behaviour of a reasonable prudent man and to make them respectful
towards each other’s rights and duties.In order to achieve its aim law of torts
allows the victim to claim compensation for the infringement of his right.
But here it is needed to be mentioned that only certain accepted pattern of
behaviour is recognised by law which when infringed by others becomes redressal
under tort law. Hence all expectations of individuals or group of individuals are
not redressable as only recognised interests are protected by law.

Thus to summarise the scope of tort one can conclude that every wrongful act is
not a tort. To constitute a tort,

a)Existence of a duty of care:

b) Commission of wrongful act by a person;

c) The nature of the wrongful act should be such to have a resort to legal remedy
and

d) Unliquidated damages should be the legal remedy for the wrongful act.

l.Existence of a duty of care:

The law imposes a duty on every individual to observe and maintain a reasonable
standard of care when performing any act which may potentially cause harm to
another person. In order to bring a suit for a tort, it must be proved that there
existed a duty of care towards the injured party, which was subsequently
breached by the tortfeasor. It is not necessary that the injured party and the
tortfeasor have a direct connection for the duty of care to exist, rather, the duty is
imposed by operation of law.

ii.Wrongful Act

An act becomes a wrongful act if only it violates a legal right of another individual.

‘A legal right, as defined by Austin, is a faculty which resides in a determinate

party or parties by virtue of a given law, and which avails against a party (or
parties or answers to a duty lying on a party or parties) other than the party or
parties in whom it resides. Rights available against the world at large are very
numerous.
They may be divided again into public rights and private rights. Every right carries
a legal duty or obligation to perform some act or refrain from performing an act.
Therefore, liability for tort arises, when the wrongful act complained of amounts
to either an infringement of a legal private right or a breach or violation of a legal
duty.’

III. Damage

Generally, a tort consists of some act done by a person which causes injury to
another and for which damages are claimed by the latter against the former. One
must have a clear notion with regard to the words damage and damages to
understand this.

Ordinarily to convey any loss, injury or if anyone is deprived from anything the
word damage is used, whereas damages mean the compensation claimed by the
injured party and awarded by the court. Damages are claimed and awarded by
the court to the parties.

The word injury is strictly limited to an actionable wrong, while damage means
loss or harm occurring in fact, whether actionable as an injury or not.

The real importance of a legal damage is explained by two maxims, namely,

Damnum Sine Injuria and Injuria Sine Damno.

(i) Damnum Sine Injuria (Damage in absence of Injury)

There are several acts that in spite of being’ harmful aren’t wrongful and provides
no right of action to one who suffers from their effects. Damage thus done and
suffered is termed Damnum sine Injuria or damage in absence of injury. Damage
while not breach of a right won’t represent a tort.

They’re instances of damage suffered from excusable acts. An act or omission

committed with lawful justification or excuse won’t be a explanation for action
even if’ it ends up in hurt to a different as a mix in furtherance of trade interest or
lawful user of one’s own premises.
Other than legal wrongs there can some moral wrongs for which there is no legal
remedy, in spite of the fact that those moral wrongs can actual cause real loss or
damage.

Thus, loss or injury is not sufficient enough to give rise to a valid cause of action
unless it has caused any legal injury i.e. violationviolation of legal right.

(ii) Injuria sine Damno (injury in absence of damage)

This means an act which causes infringement of a legal personal right with none
actual loss or injury. In such a case the person whose right has been infringed
incorporates a smart explanation for action.

It’s not necessary for him to prove any special damage as a result of each injury as
each injury imports a damage once a person is hindered of his right.

Every person has an absolute right to property, to the immunity of his person, and
to his liberty, and an infringement of this right is unjust as such. Actual
perceptible injury isn’t, therefore, essential to be the foundation of associate an
action.

It’s decent to point out the violation of a right within which case the law can
presume injury. Therefore in cases of assault, battery, imprisonment, libel,
trespass toward land, etc., the mere wrongful act is unjust while not proof of
special injury.

The court is sure to award to the litigator a minimum of nominal damages if no

actual damage is evidenced.

This principle was firmly established by the election case of Ashby v. White,in
which the plaintiff was unlawfully detained and prevented by the returning officer
in Parliamentary election from casting his vote.

Against which the plaintiff sued the defendant even though no actual loss was
caused to him in real sense as the candidate to whom he would have casted his
vote had in any case won the election.
In this case the plaintiff claim for compensation for malicious prosecution was
acknowledged and Lord Holt expressed here that as the plaintiff’s legal right was
infringed, legal injury was caused to him and hence his loss was actionable under
law of torts.

Iv. Remedies

The maxim ‘ubi jus ibi remedium’ which means ‘there is no wrong without a
remedy’ is the core behind the evolution of law of torts. When any right is vested
in an individual it only makes sense if in event of its violation it can be enforced by
way of legal remedy. Hence, a right is meaningless if there lies no remedy for its
infringement.

Q3)what is pigeon hole theory? Distinction between Injuria sine damno and
Damnum sine injuria?

Distinction between Injuria sine damno and Damnum sine injuria

(1) On one hand, i.e. in the case of Injuria sine damno there is no physical damage
or an actual loss on the part of the plaintiff while on the other hand in case of
damnum sine injuria there is actual damage and loss on the part of the plaintiff.

(2) Secondly, in the case of Injuria sine damno, the party suffers with the
infringement of their legal rights, while in the case of Damnum sine injuria, there
is no legal right infringement.

(3) Thirdly, Injuria sine damno is actionable in the court while Damnum sine
injuria is not actionable in court.

(4) Fourthly, the Injuria sine damno deal with the legal wrongs while Damnum
sine injuria deal with the moral wrongs.

Theories of general principles of liability

The basic principle of ascertaining the liability of the wrongdoer is based upon
two major theories:
A)Pigeon Hole Theory- According to this theory, several unidentified offences and
wrongful conduct would not come under the purview of liability in tort law.

B)Wider and Narrower Theory- According to this theory, the wrongs committed
by the party which is not in the interests or injure the other party would come
under the purview of tort law without the requirement of a legal justification.

Pigeon hole theory

According to Salmond, “Tort is a civil wrong for which the remedy is a common-
law action for unliquidated damages, and which is not exclusively the breach of
contract, or, the breach of trust, or, other merely equitable obligation.”

The entire pigeon-hole theory laid down by Salmond seeks to answer two
questions-

Should the law of torts be restricted to the torts that strictly fall within its
purview?

Should every act deemed wrongful and committed without any justification, be
classified as a tort?

According to Salmond, no single principle can be applied to ascertain the liability

of the wrongdoer. Only well-defined wrongs should be considered as tort and
confined within a small box known as a pigeon hole. He compared the domain of
tort to that of a pigeon hole with a number of smaller holes. These smaller holes
would represent assault, slander, battery, malicious prosecution, and all the
recognized wrongs. He was against having a general approach to the law of tort. A
remedy would be available for only those wrongs which would fall under the
established torts and the burden of proof would be on the plaintiff to establish
that the wrong would come under the ambit of a specific, identified tort. If a
wrong would not be a part of any of these holes, no claim could arise.

Supporters of the pigeon hole theory

Dr. Jenks supported this theory and explained that it would not restrict the courts
from creating new torts; rather, the new torts would need to bear similarity to
the already existing ones.

A similar view was held by Heuston. He believed that there was an error in
interpreting the theory. Salmond never intended to classify the law of torts as a
closed and expansible system. It does not mean that the pigeon holes are not
abundant and they may not be added to.

Dr Glanville Williams supported the theory and stated that classifying torts into
pigeon holes should not be interpreted as pigeon holes not having enough space
for all the wrongs or not being expandable.

Criticism of the theory

The theory was heavily criticised on the grounds that many new torts existed that
had not been legally recognized and were not in any way similar to those already
in existence. It has also been criticized due to confining the scope of the law of
torts. In the modern-day world, the number of wrongs is increasing at an
exponential rate. In the case of Chapman v Pickersgill (1762), Pratt C.J. held that
torts are infinitely many and are not confined or limited to any extent. In Pasley v
Freeman (1789), the tort of deceit was legally recognized. The doctrine of strict
liability was established in Rylands v Fletcher (1868) and the tort was not
substantially similar to any tort in existence

The case of Donoghue v Stevenson (1932) is self-explanatory. A complaint was

lodged by the plaintiff after finding a snail at the bottom of the ginger beer she
had purchased. Being an injury that could not be reasonably foreseen, the owner
was not held liable; rather, it was the manufacturer who was liable for his
negligent conduct. The neighbour rule and laws on the rights of the consumers
were formulated after the case. The tort of negligence was shaped because of the
landmark judgment. In Furniss v. Fitchett (1958), Barrow C.J. stated that the well-
known traditional torts do not emanate from an all-embracing general principle
ascertaining tortious liability. In Rookes v Barnard (1964), the tort of intimidation
was identified. Most importantly, the landmark judgment of MC Mehta v Union of
India (1986) wherein the Supreme Court of India propounded the concept of
‘absolute liability.’

The courts have explicitly or implicitly, set aside the pigeon hole theory
propounded by Salmond due to its confining nature. There is no scope to
incorporate or create new torts. The plaintiff would further suffer as he would be
stripped of having a right to take action against the wrongdoer in a court of law.

If we go by the pigeon hole theory, it would be difficult to address the needs of

the people and the legislative framework that needs to be formulated on an
urgent basis would be dismissed on the ground that the wrong has not been
recognized previously. Would the injury cease to exist because there is no
established wrong? The answer to this question would be no.

Winfield’s take on tortious liability- opposing pigeon hole theory

Winfield, an influential legal scholar referred to torts as “tortious liability arises

from the breach of a duty primarily fixed by law, this duty is towards persons
generally and its breach is redressable by an action for unliquidated damages.” In
simpler words, he considered tort as a breach of duty the remedy to which would
be given in the form of unliquidated damages, that is, damages awarded for
breach of contract that arises from causes that are not reasonably foreseeable.

He interpreted a tort as an injury caused to another individual with no

justification by the pre-existing laws of the land. He believed in a single category
of tort which would accommodate newer torts as well unlike Salmond’s theory
and establish a general principle of liability. The remedy would be given to the
unidentified wrongs as well.

As opposed to Salmond, Winfield’s theory also supported the creation of new

torts by the courts of law. In Ashby v White (1703), Holt CJ stated that if a man
has multiple injuries, the actions that can be taken must be multiplied as well
since every injured man has the right to compensation. Justice Bhagwati in MC
Mehta v Union of India (1986) opined that there is a need to evolve the existing
principles and lay down norms addressing newer issues arising from a heavily
industrialized economy. The understanding and thinking of the courts must not be
restrained and new jurisprudence must be created.

Therefore, we can observe that Winfield’s theory was quite broad and was the
total opposite of what Salmond has proposed. It was also widely accepted by the
courts of law implicitly.

However, a significant observation was made by Winfield wherein he stated that

Salmond’s theory would suffice to provide a narrower look in a similar manner to
how a tree is treated as ‘inanimate’ for the purposes of avoiding a crash but
would be classified as animate because it has grown from a sapling and continues
to grow.

Prima facie tort theory

The prima facie theory was proposed by Pollock and Holmes at the later stages of
the 19th century. They proposed that intentionally inflicting injury without any
reasonable or legal justification would be considered as an actionable cause even
if the injury does not fall under the purview of an already established wrong. This
theory also opposed the main proposition of Salmond’s theory.

They classified tort into three categories. First, where intentional conduct was the
cause of action. Second, negligent conduct is the cause of action, and third, cause
of action emanating from the principle of strict liability.

Holmes perceived the theory as not taking another intentional tort within its
ambit but a general principle for ascertaining liability in cases of intentional harm.
To draw a comparison, Salmond’s theory aimed to provide remedies for those
torts that have been identified whereas Winfield’s theory incorporated new torts
with the passage of time.

The Supreme Court of Mexico in the case of Schmitz v Smentowski,(1990) also

provided certain elements of the prima facie tort theory that must be fulfilled to
ascertain liability:

Commission of an intentional lawful act by the defendant

Intentional act to cause injury

The plaintiff being injured as a result of the commission of the act

No legal or valid justification

These elements were perceived as the general requisites for ascertaining liability
in tort cases. The plaintiff can plead prima facie tort on the establishment of these
requisites and there is no need to analyze the traditional tort in one of the pigeon
holes.

Therefore, both Winfield’s theory and the prima facie tort theory opposed
Salmond’s restrictive pigeon-hole theory and encouraged the expansion of torts.

Q4)what is tort of negligence and its elements? Res Ipsa loquitur?what are the
general defences available in a suit of negligence(Act of god, Contributory
negligence, Inevitable Accident)?

Definition of Negligence

According to Winfield and Jolowicz, Negligence is the breach of a legal duty of

care by the plaintiff which results in undesired damage to the plaintiff.

In Blyth v. Birmingham Water Works Co, Negligence was defined as the omission
to do something which a reasonable man would do or doing something which a
prudent or reasonable man would not do.

It can be characterized in three forms-

i.Nonfeasance: It means the act of failure to do something which a person should

have done. For example, failure to carry out the repairs of an old building when it
should have been done.

ii.Misfeasance: It means the act of not doing an action properly when it should
have been done properly. For example, Doing the repairs of an old building but
doing so by using very poor quality materials creating a major probability of a
collapse which injures people.
iii.Malfeasance: It means the act of doing something which should not have been
done in the first place itself. For example, using products that are not allowed and
combustible to carry out the repairs of an old building, therefore, converting the
building into a firetrap leading to an accident.

Illustration

Z, An owner of a big dog requests his friend X to take care of the dog while he is
away. X leaves the dog unattended who attacks a passerby badly injuring him.
Here it will be said that the act occurred due to the negligence of X.

In the general sense, the extent of liability in tort is determined by the number of
damages a party has incurred. Consequently, in criminal law, the extent of liability
is determined by the amount and degree of negligence.

How is Criminal Negligence Different from Civil Negligence?

Criminal negligence is said to take place when a person acts in a particular way
which is an extreme departure from which a reasonable person would act in a
similar or same circumstance. The difference in civil negligence is that the conduct
may not be seen as a radical departure from the way a reasonable person would
have responded.

Civil negligence occurs when a person fails to exercise ordinary care or due
diligence but criminal negligence relates to a conduct that is considered so
extreme and rash that it is a clear divergence from the way an ordinarily prudent
person would act and is considered to be more than just a mistake in judgment or
distraction.

In civil negligence, there is a lesser burden of proof because the plaintiff in such a
case only has to prove that it is most likely that the defendant was negligent. But
in criminal negligence, the plaintiff has to prove “beyond a reasonable doubt”
that the defendant was negligent which is the highest standard of proof which
means that the evidence is so strong that there is no other logical explanation
besides the fact that the defendant acted with criminal negligence.
The punishment for a person who was liable in a civil negligence case only
extends to the extent of damage caused to the plaintiff i.e compensation for the
damages.

In criminal negligence cases, the punishment is much more serious and can be
convicted for a prison term, fine and probation supervision. Example the
punishment for criminal negligence amounting to death under section 304A of IPC
can extend to 2 years of jail and fine or both.

For example, if someone driving a vehicle under the influence of drugs and
alcohol and caused the death of an individual, it would amount to criminal
negligence since this is considered extreme carelessness on their part.

But if a housekeeper in an office is mopping the floor and has forgotten to keep a
‘wet floor’ signboard, any accident that occurs would amount to civil negligence
as there was only a lack of due diligence on the part of the housekeeper but not
extreme neglect.

Essentials of negligence

To commit the tort of negligence, there are primarily 6 main essentials that are
required. An act will be categorized as negligence only if, all the conditions are
satisfied namely –

1) Duty Of Care

It is one of the essential conditions of negligence in order to make the person

liable.

It means that every person owes, a duty of care, to another person while
performing an act. Although this duty exists in all acts, but in negligence, the duty
is legal in nature and cannot be illegal or unlawful and also cannot be of moral,
ethical or religious nature.

2)The Duty must be towards the plaintiff

A duty arises when the law recognizes a relationship between the defendant and
the plaintiff and requires the defendant to act in a certain manner toward the
plaintiff. It is not sufficient that the defendant owed a duty of care towards the
plaintiff but it must also be established which is usually determined by the judge.

3)Breach of Duty to take care

It’s not enough for a plaintiff to prove that the defendant owed him a duty of care
but he must also establish that the defendant breached his duty to the plaintiff. A
defendant breaches such a duty by failing to exercise reasonable care in fulfilling
the duty. In other words, the breach of a duty of care means that the person who

has an existing duty of care should act wisely and not omit or commit any act
which he has to do or not do as said in the case of Blyth v. Birmingham
Waterworks Co, (1856). In simple terms, it means non-observance of a standard
of care.

4)Actual cause or cause in fact

In this scenario, the plaintiff who is suing the defendant for negligence has the
liability to prove is that the defendant’s violation of duty was the actual cause of
the damages incurred by him.

This is often called the “but-for” causation which means that, but for the
defendant’s actions, the plaintiff would not have incurred the damages.

For example, When a bus strikes a car, the bus driver’s actions are the actual
cause of the accident.

5)Proximate cause

Proximate cause means “legal cause,” or the cause that the law recognizes as the
primary cause of the injury. It may not be the first event that set in motion a
sequence of events that led to an injury, and it may not be the very last event
before the injury occurs. Instead, it is an action that produced foreseeable
consequences without intervention from anyone else. A defendant in a
negligence case is only responsible for those damages that the defendant could
have foreseen through his actions.

6)Consequential harm to the plaintiff

Proving that the defendant failed to exercise reasonable care is not enough. It
should also be proved that the failure of the defendant to exercise reasonable
care resulted in damages to the plaintiff to whom the defendant owed a duty of
care.

The harm may fall into the following classes:-

a.) Bodily harm

b.) Harm to the reputation

c.) Harm to property

d.) Financial Loss

e.) Mental Harm.

When such damage is proved, the defendant is bound to compensate the plaintiff
for the damages occurred.

In the case of Joseph vs Dr. George Moonjely(1994) The Kerela high court
awarded damages amounting to Rs 1,60,000 against a surgeon for performing an
operation on a 24-year-old girl without following proper medical procedures and
not even administering local anaesthesia.

Res ipsa loquitur

Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”

It is considered to be a type of circumstantial evidence which permits the court to

determine that the negligence of the defendant led to an unusual event that
subsequently caused injury to the plaintiff. Although generally the duty to prove
that the defendant acted negligently lies upon the plaintiff but through res ipsa
loquitur, if the plaintiff presents certain circumstantial facts, it becomes the
burden of the defendant to prove that he was not negligent.

This doctrine arose out of the case of Byrne vs Boadle(1863)

The plaintiff was walking by a warehouse on the road and suffered injuries from a
falling barrel of flour which rolled out of a window from the second floor. At the
trial, the plaintiff’s attorney argued that the facts spoke for themselves and
demonstrated the warehouse’s negligence since no other explanation could
account for the cause of the plaintiff’s injuries.

Thus the following are the three essential requirements for the application of this
maxim-

1)The thing causing the damage must be under the control of the defendant or his
servants

2)The accident must be such as would not have happened in the ordinary course
of things without negligence.

3)There must be no evidence of the actual cause of the accident.

Defenses available in a suit for negligence

1)Contributory negligence by the plaintiff

Contributory negligence means that when the immediate cause of the damage is
the negligence of the plaintiff himself, the plaintiff cannot sue the defendant for
damages and the defendant can use it as a defense. This is because the plaintiff in
such a case is considered to be the author of his own wrong. It is based on the
maxim volenti non fit iniuria which states that if someone willingly places
themselves in a position which might result in harm, they are not entitled to claim
for damages caused by such harm.

The plaintiff is not entitled to recover from the defendant if it is proved that-

1)The plaintiff by the exercise of ordinary care could have avoided the
consequence of the defendant’s negligence.

2)The defendant could not have avoided the consequence of the plaintiff’s
negligence by an exercise of ordinary care
3)There has been as much want of reasonable care on the plaintiffs part as on the
defendants part and the former cannot sue the latter for the same.

The burden of proving contributory negligence rests on the defendant in the first
instance and in the absence of such evidence, the plaintiff is not bound to prove
its non-existence

In the case of Shelton Vs L & W Railway(1946), while the plaintiff was crossing a
railway line, a servant of the railway company who was in charge of crossing
shouted a warning to him. Due to the plaintiff being deaf, he was unable to hear
the warning and was consequently injured. The court held that this amounted to
contributory negligence by him.

2) An Act of God

An Act of God is a direct, violent and sudden act of nature which by any amount
of human foresight could have been foreseen and if foreseen could not by any
amount of human care and skill have been resisted. Thus such acts which are
caused by the basic forces of nature come under this category.For example
storm,tempest,extraordinary high tide,extraordinary rainfall etc.

If the cause of injury or death of a person is due to the happening of a natural

disaster, then the defendant will not be liable for the same provided that he
proves the same in the court of law. This particular defence was talked in the case
of Nichols v. Marsland (1876) in which the defendant had a series of artificial lakes
on his land. There had been no negligence on the part of the defendant in the
construction and maintenance of the artificial lakes. Due to unpredictable heavy
rain, some of the reservoirs burst and swept away four country bridges. It was
held by the court that the defendant could not be said to be liable since the water
escaped by the act of God.

3) Inevitable Accident

An inevitable accident can also be called as a defense of negligence and refers to

an accident that had no chance of being prevented by the exercise of ordinary
care, caution, and skill. It means a physically unavoidable accident.
In the case of Brown v. Kendal (1850) the plaintiff’s and defendant dogs were
fighting and their owners attempted to separate them. In an effort to do so,
Defendant beat the dogs with a stick and accidentally injured the Plaintiff,
severely injuring him in the eye. The Plaintiff brought suit against the Defendant
for assault and battery. It was held that the injury of the plaintiff was as a result of
an inevitable accident.

4)volenti non-fit injuria

In the law of torts, there is a duty on every person do acts with reasonable care in
order to avoid any harm which may occur due to their failure of taking such care.
For e.g., If a person is driving his car, he has a duty to drive the car safely and
within speed limits so that no accident occurs which can also harm any other
person.

This is the general rule in torts but there are certain exceptions which are allowed
in these cases and these called as defences to tort. Under these defences, a
defendant can escape liability and volenti non-fit injuria is also one such defence
which is available for the defendant.

In case a person gives his consent to doing of an act which leads to him getting
injured, then even if an injury is caused by the other person, he cannot claim any
damages from that person because the act was one for which he voluntarily
consented. The consent of the plaintiff acts as a defence and this defence is called
volenti non fit injuria which means to a willing person no injury happens.

Q5)What is volenti non-fit injuria?

In the law of torts, there is a duty on every person do acts with reasonable care in
order to avoid any harm which may occur due to their failure of taking such care.
For e.g., If a person is driving his car, he has a duty to drive the car safely and
within speed limits so that no accident occurs which can also harm any other
person.

This is the general rule in torts but there are certain exceptions which are allowed
in these cases and these called as defences to tort. Under these defences, a
defendant can escape liability and volenti non-fit injuria is also one such defence
which is available for the defendant.

In case a person gives his consent to doing of an act which leads to him getting
injured, then even if an injury is caused by the other person, he cannot claim any
damages from that person because the act was one for which he voluntarily
consented. The consent of the plaintiff acts as a defence and this defence is called
volenti non fit injuria which means to a willing person no injury happens.

Illustration: If A has a bike whose brakes do not work and B knowing about the
conditions of the bike still chooses to sit on it with A driving it and due to the
failure of such brakes they both sustain injuries in an accident, B cannot claim
relief from A because he had voluntarily consented to sit on the bike.

But in the above illustration, if B was not aware of the conditions of brakes and
then he sustained injuries sitting in it, he would not be stopped from claiming
damages from A because here B did not give his consent to accept the risk of
getting injured due to failure of the brakes.

Elements of Volenti non-fit injuria

For the application of the defence of volenti non fit injuria there are some
essential elements or conditions which should be present in a case and only when
they are fulfilled, this defence can be taken to prevent liability.

There are 2 essential elements in this defence:

The plaintiff has the knowledge of the risk

The plaintiff with the knowledge of risk has voluntarily agreed to suffer the
harm.

Thus, whenever the plaintiff is aware of the possibility of harm which is likely to
be caused by an act and when he still accepts to do that act and therefore agrees
to suffer the injury, a defendant is relieved of his liability.

But only having knowledge about the risk is not enough for the application of this
defence, It is known as Scienti non fit injuria, which means that mere knowledge
does mean consent to the risk. Thus having knowledge is only a partial fulfilment
of the conditions for the application of volenti non fit injuria.

Illustration: A goes for bungee jumping and he knows that he might get injured by
it but he still decides to do it and as a result, he suffers injury despite all the
necessary care being taken by the organisers. Here A cannot claim damages from
the organisers because he had full knowledge of the risks and he had voluntarily
agreed to suffer that injury by choosing to do bungee jumping.

Burden of proof

In the cases where the defendant is taking the defence of volenti non fit injuria,
the burden of proof is on him to show that the plaintiff had full knowledge of the
act and he had consented to the risk involved in the act and the defendant has to
show that the plaintiff was also aware of the extent of risk which was involved in
the act for successfully taking this defence.

Illustration: A has to undergo an operation for his eye infection and the doctor
fails to inform him about the risk of losing his vision due to the operation, as a
result, A takes the operation believing that there is no such risk to his eye. In the
operation, if A loses his eyesight, the doctor will be held liable because A did not
have the knowledge about the extent of the risk which was involved in the
operation and therefore, the defence of volenti non-fit injuria cannot be taken.

Consent of the plaintiff

The consent of the plaintiff is very important in the defence of volenti non fit
injuria because only when he voluntarily gives his consent to an act, the
defendant can take this defence.

Consent may be Express or Implied

In the cases of this defence, the consent of the defendant is not required to be
expressly given and even by his conduct, his consent can be taken.

Illustration: A goes to watch a cricket match and while watching the match the
batsman hits a six that hurts A’s hands when he attempts to catch it. Here A
cannot hold the batsman or the owner of the Cricket stadium liable because he
had impliedly consented to this injury by his act of purchasing the ticket and
sitting in the stadium and thus despite no express consent, the defence of volenti
non fit injuria will apply here and his consent will be deemed to be implied for
such injury.

Consent of the Plaintiff must be free

When a plaintiff gives his consent for an act such consent should be free from any
coercion, fraud or any other such means by which the free consent can be
affected.

For e.g., A has a heart problem and he goes to a hospital for surgery. There he is
informed by the surgeons that the required surgery is very complicated and there
is a chance of the surgery failing which can cause his death. If A gives his consent
to have the surgery and the surgeon despite taking all reasonable care in doing
the surgery is not able to save A, then the surgeon cannot be held liable because
A had given his consent for it and this consent was given freely.

In case the consent of a person is not free, the defendant cannot claim this
defence to escape liability and he will be held liable for damage caused.

For e.g., A having heart problem goes to a surgeon and he is told that he needs
surgery to which he agrees. During the surgery, the surgeon removes one kidney
of A without his knowledge. In this case, even though the surgery is successful the
surgeon will be held liable because A did not give his consent to the removal of
his kidney.

In the case of Ravindra Padmanabhan (Dr.) vs Lakshmi Rajan And Anr., the
plaintiff had a tumour on her breasts and therefore she went to the hospital to
have it removed. While operating her the doctor also removed the uterus even
though it had nothing to do with the tumour. Thus, the Court held the defendants
liable and thus, the defence of volenti non fit injuria was rejected.

Consent by fraud
In cases of consent having been obtained by fraud, the defence of volenti non fit
injuria will not apply and the defendant will be held liable for the wrong by him.

For e.g., in the case of R v. Williams (193) 1 KB 340, the defendant was a singing
coach and he had convinced a 16-year-old student to have sexual intercourse with
him by telling her that it will help her in improving her voice and singing. The
defendant was held liable by the Court because the consent was obtained by
fraud.

Consent in cases of intentional infliction of harm

In the cases where harm is caused to a person intentionally, the defence of

volenti non fit injuria will apply if the person has given his consent to such harm.

Illustration: A is a boxer who is fighting B in a boxing match. During the match, B

punches A very hard as a result of which he suffers head injuries. In this case,
even though B had intentionally inflicted harm on B it will not make B liable
because A had willingly given his consent.

Limitations on the application of volenti non fit injuria

There are certain limitations under which the defence of volenti non fit injuria
cannot be taken by a defendant even if the essentials of this defence are present
in the case.

i.Rescue Cases

When the plaintiff suffers an injury as a result of him doing an act which he knows
is likely to cause harm to him but it is an act to rescue someone, then this defence
will not apply and the defendant will be held liable.

Illustration: A fire is caused due to the negligence of A, and B is trapped inside the
fire. C sees B and jumps into the fire to rescue him but in doing so he is also
burned. Here even though C went into the fire voluntarily, knowing fully well that
he may be burned, A will be held liable for negligence and the defence of volenti
non fit injuria cannot be applied in this case, therefore, C will is entitled to receive
damages from A.
ii.Illegal Acts

If the consent is given for an act which is not allowed by law then, even on the
fulfilment of all the essential conditions of this defence, the liability cannot be
escaped and thus in such cases, this defence becomes inoperative.

Illustration: If A and B decide to do a fight with sharp swords, when such an act is
prohibited by law, and A suffers a big cut due to which he suffers serious injuries,
then in such case B cannot take the defence of having A’s consent in doing this act
because it was prohibited by law and thus B will be liable.

iii.Negligence of the defendant

The defence of volenti non fit injuria is not applicable in a case where the
defendant has been negligent. Thus only where there is no negligence by the
defendant, he can claim this defence to escape liability.

Illustration: If A goes undergoes a heart operation and he gives his consent for it
even though he knows that there is a risk of the operation failing which can cause
his death, the surgeon will not be liable if A dies as a result of the surgery if he
had taken all due care. But if the operation had failed because of the negligence
in carrying out the surgery then in such a case, the surgeon cannot claim the
defence of having received the consent of A and he will be liable because there
was negligence on his part in conducting the surgery.

Volenti non fit injuria and Contributory negligence

Both contributory negligence and volenti non fit injuria are used as a defence by
the defendant to escape liability but they differ from each other.

In contributory negligence, the plaintiff who has suffered an injury is also at fault
along with the defendant and therefore the quantum of damages which he can be
awarded is reduced in proportion to the degree of his negligence in the act which
caused him injury. Thus, both the parties are at fault in such a case and therefore
this is a partial defence available to the defendant.
Illustration: A gets hit by a car while crossing a road, which was being driven by B
and he drove it rashly and over speed limit due to which A sustained many
injuries. But this accident happened because A decided to cross the road even
though the traffic signal was on and thus the pedestrians could not cross it until
the signal stopped for the vehicles. Here both A and B are at fault and therefore
even though B will be held liable, the damages which he has to provide will be
reduced because A was also at fault and thus the defence of contributory
negligence applies here,

In volenti non fit injuria, the defendant is completely exempted from his liability
because of plaintiff’s consent and thus it is a total defence.

Q6) What is Vicarious Liability?master’s vicarious liability?

Vicarious liability means the liability of a person for an act committed by another
person and such liability arises due to the nature of the relation between the two.
For e.g. A, is a driver who works for B and while driving B’s car for taking him to
his office, he hits C, a pedestrian due to his negligence in driving. In such a case
even though B was not driving the car he will still be liable for the accident which
was caused due to the negligence of A.

Relations in which Vicarious Liability arises

These are the major relations in which vicarious liability of a person arises

Master and Servant.

Partners in a Partnership Firm.

Principal and Agent.

Company and its Directors.

Owner and Independent Contractor.

A)Vicarious Liability of Master for torts by Servant

In a Master-Servant relationship, the master employs the services of the servant
and he works on the command of master and thus a special relation exists
between the two and in case of a tort committed by the servant, his master is also
held liable.

There are many cases in which the servant does an act for his master and thus in
law, it is deemed that the master was doing that act himself, therefore if the
servant commits an unlawful act the master will also be held liable for the same.
This liability of the master is based on the following two maxims

1.Qui facit per alium facit per se: – It means that whenever a person gets
something done by another person then the person is viewed to be doing such an
act himself.

Illustration: If A is the owner of many trucks and employs drivers to drive them for
the purpose of trade and in case one of his drivers gets into an accident because
of his rash driving, then even though A did not drive the truck himself, he will be
liable for the accident.

2. Respondant Superior: – It means that the superior should be held responsible

for the acts done by his subordinate.

These two maxims have played a significant role in the development of the law of
vicarious liability of the master.

Essentials of Vicarious liability in Master-Servant Relationship

These essential conditions have to be followed for the vicarious liability of master
to arise: –

1. The servant has committed an act which amounts to a tort.

2. Such a tortious act is committed by the servant during the course of his
employment under the master.

Reasons for liability of the Master

There are several reasons behind holding the master liable for the acts of his
servants which are: –

An act which is committed by the servant is considered to be done by the master

through him and therefore in the law of torts, it is assumed that if any wrong is
done by the servant, it has been committed by his master indirectly and so the
master is held liable for these wrongs.

The master is in a better financial position as compared to his servant and thus in
case of any loss caused by the tortious act of the servant, the master is better
suited to pay off the damages to the victim of the act. Also, since the master is
made liable he makes sure that all reasonable care and precautions are carried so
that he can avoid such liability.

When a servant does any act, the benefit from such an act is enjoyed by the
master and thus for the liability arising out of the servant’s act, the master should
also shoulder that liability.

Test for Determining Master-Servant Relationship

For the determination of a Master-Servant relationship, certain tests have been

developed over a long period of time.

Traditional View – Control Test

As per this test, for the determination of a master and servant relationship, it
should be seen whether the master has the power to not only instruct what
should be done but also the manner of doing the act and if such power exists then
as per this test, the master and servant relationship exists between the two.

Illustration: A is the owner of a big area of land on which farming activities are
carried out and he has hired many workers for farming. A, not only instructs them
how to do their jobs but also how to do it. Here, by the test of control, the
relation between A and his employees is established as that of a master-servant.

Modern View
The old Control test is not applicable as an exhaustive test because in cases of
work requiring skill such as a doctor working in a hospital, the owner of the
Hospital cannot instruct the doctor on how to treat a patient and can only instruct
him to treat patients. Thus certain other tests have been developed for
determining the Master and Servant Relationship.

Illustration: In an IT company the programmers are the employees of the

company and there is a master-servant relationship but if the company has hired
catering services, the company does not have a master-servant relationship
because the act of providing food is not an integral part of an IT company.

Multiple Test

This test provides that people who are in a contract of service are deemed to be
employees whereas the people who are in contract for service are independent
contractors. In the case of Ready Mixed Concrete v Minister of Pensions and
National Insurance (1968) 2 QB 497, three conditions were laid down for a
contract of service

The servant agrees to provide his skill and work to the master for performing
some service in exchange for wages or some other consideration.

He agrees to be subjected to such a degree of control so as to make the person

his master in performance of his work.

The other provisions of the contract are consistent with this provision of being a
contract of service.

This view was also reiterated in the case of The Management of Indian Bank v.
The Presiding Officer.

This test also includes other important factors that are used to determine the
master-servant relationship such as who owns the tools being used for the work,
is the employee paid wages monthly or on a daily basis and all other relevant
factors.
Thus the old view of using Control test is no longer the only method of
determining the relation of master and servant as it has been realized that in the
present complex world where there are a wide number of factors which affect the
process of determining the relation between the employee and the employer, it is
not possible to use just one test and thus the various aspects of a case are seen to
determine the nature of the relationship and to decide whether such a relation is
that of master and servant or not.

Difference between Servant and Independent contractor

A servant and an independent contractor both do the work at the behest of

another person and thus what shall be done is not decided by them but by some
other person and thus on the face of it appears, that both are in the same
category and a master should be liable for the torts committed by both of them
but there is a difference between the two which separates them and
consequently, while, in case of tort by servant, the master is liable but in case of
independent contractor the master cannot be held liable.

In case of a servant there is a contract of service which means that along with
instructing what task should be done by the servant, the master also has the right
to instruct the manner in which that act has to be done and thus the servant does
not have autonomy in the performance of his duties.

Illustration: P is the owner of a newspaper in which many editors are working.

Here P as the owner has the right of telling them which news should be covered
and how it should be written.

Whereas in the case of an independent contractor there is a contract for service

which means that he can only be instructed as to what should be done but how to
do the work is left at his will and he does not take any instructions from the
master.

Illustration: If P is the owner of a newspaper and his machinery is damaged and

he calls J to repair it. Here P can instruct him what to do but how to repair the
machinery is left to be done by J without any instructions from P.
Various ways in which liability of Master arises

A master becomes liable in the following situations:

i.Wrong done as a natural consequence of an act by Servant for Master with due
care

If the employee does an act which is done in pursuance of the instructions of the
master, then the master will be held liable for any wrong which arises out of such
an act even if all due care is taken by the employee in discharging his work.

ii.Wrong due to Negligence of Worker

A master is also liable for an act of servant which he does negligently or fails to
take due care in carrying out.

Illustration: If H works as a house cleaner for K then there is a master and servant
relationship between them but, if H instead of cleaning the house decides to cook
food even though he has only been hired for cleaning the house and due to his
negligence causes a fire which also causes loss to K’s neighbour L, then K, will not
be liable because H did an act which was outside the course of his employment.

iii.Wrong by excess or mistaken execution of a lawful authority

For making the master liable in such a case it has to be shown that: –

The servant had intended to do an act on behalf of his master, which he was
authorized to do.

The act would have been lawful if it was done in those circumstances which the
servant mistakenly believed were true or if the act would have been lawful if done
properly.

iv.Wrong committed willfully by a servant with the intention of serving the

purpose of the master
If a servant does any act willfully, recklessly or improperly then the master will be
held liable for any wrong arising out of such act, if such an act is done in the
course of employment.

v.Wrong by Servant’s Fraudulent Act

A master can also be held liable for any fraudulent act of the servant.

Illustration: If A goes to a bank and deposits a check with C, an employee of the

bank and C fraudulently transfers that amount to his wife’s account. Here for the
fraudulent act of C, the bank will be liable.

Q7) what is sovereign immunity?

Sovereignty, in political theory, means the ultimate supervisor or authority which

works in the decision-making process of the state and also in maintaining order.
This concept is of those controversial ideas from political science and
international law, it relates to the difficult concepts of the states, government,
independence, and democracy. This term is derived from the Latin term
“superanus” through the French “souveraineté“, which primarily means
coordinative to supreme power. Though its application has changed from its
traditional meaning.

State sovereign immunity

Under this doctrine, a state cannot be sued in federal or state court without its
consent to it. As the 11th amendment limits to only two particular situations in
the federal court, the supreme court doesn’t hold the immunity derived by the
said amendment. A state court can invoke its immunity even when it is issued
under an otherwise valid federal law. The state has the full authority to explain
the scope of its immunity from the suits based on its state law.

The sovereign immunity: legal maxim

The legal maxim of sovereign immunity recognizes the principle of “rex non
potest peccare” which means the king can do no wrong. It is based on the
common law principle of British Jurisprudence, which says that a king cannot be
held liable for the act of negligence or misconduct and also cannot be held for the
act of his servants. The other attribute of sovereignty is that a state cannot be
held liable for any legal wrong in its court without its consent.

The Indian courts have declined it and it is not in use since the mid-nineteenth
century till the present. The Indian court has always given first place to the
genuine claims by keeping the scope of sovereign functions narrower. So that
those genuine claims should get damages. The law commission of India in its most
first report has recommended the abolition of this outdated doctrine. But due to
various circumstances, the bill for this recommendation of the abolition of this
doctrine was never passed. It was left on the courts to decide on the
comparability of the said doctrine according to the Constitution of India.

Types of sovereign immunity

There are two types of immunity from which the state generally gets benefits,
those two are as follows:

i.Qualified immunity

Qualified immunity gives protection to a government authority or official who is

working in his scope of employment or area or work in the government
organization, in good faith and without violating the statutory and constitutional
rights that a reasonable person is aware of. Qualified immunity is a doctrine
created by the judicial means that protects government officials from personal
liability from violating constitutional rights such as the right to be free from the
excessive police force as long as the officials don’t violate it as it is established in
law.

ii.Absolute immunity

It immunes government officials from criminal prosecution and civil suits for
avoiding damages. This immunity completely bars a lawsuit with no exceptions.
This immunity generally applies to the prosecutors, judges, legislators, and
executive officials of all government authorities.

Immunity to jurisdiction
The immunity of the state to jurisdiction has come into results from its reliance on
the fact that it would be inappropriate to call one state’s court under the
jurisdiction of the other state. So the entities of the states are immune from the
jurisdiction of the other state’s court. Therefore, this immunity can generally be
relinquished by the state entity. It simply means that when a state authority or a
government official commits a wrong in another state, that state where the
wrong has been committed cannot call the said state in its court for that matter.
So it is said that states are free from the jurisdiction of the courts of another
state.

Immunity from execution

The states are also immune from execution, as it would be improper for one
state’s court to seize the property of another state. The immunity from execution
is also generally waived. It simply means that when a case arises where a person
or entity of a state is tried by another state and the judgment is passed against
that entity, in such matters immunity is given to the state against the
enforcement of such ruling because it would be against the principle of justice if
one court rules for seizing away another state’s property. Hence, immunity from
execution is given in the matter of property to be seized by the government and
court of another state.

Legislative provisions which encompass sovereign immunity

India has taken steps to apply the principle of law and it also promptly looks
forward to whether these principles are being applied unconditionally in the
country or not. Certain provisions in the legislation hold on the principle of
sovereign immunity and those are as follows:

i.Section 86 of the Civil Procedure Code, 1908

Section 86 of CPC deals with the provision that no suits shall be instituted against
foreign countries. This section itself points out the exception where a suit should
be instituted with the prior permission of that state government that has been
aggrieved by the act of the other state.
ii.Diplomatic Relations (Vienna Convention) Act, 1972

This Act gives diplomatic immunity, to the state and persons who are on the
state’s mission or are the ambassadors in other countries. Some of the sections of
this Convention are followed by India where the sovereign immunity is extended
to the family, staff members, and servants of those ambassadors.

Transactions not included in sovereign immunity

States’ tenancy disputes are not protected under sovereign immunity.

States are also not protected when legal wrong has been committed in
contractual and commercial transactions.

Unit2

Q1)what is tort against property?or what is tort of nuisance?

A person in possession of a property is entitled to its undisturbed enjoyment as

per law. However, if someone else’s improper use or enjoyment in his property
ends up resulting into an unlawful interference with his enjoyment or use of that
property or of some of the rights over it, or in connection with it, we can say that
the tort of nuisance has occurred.

The word “nuisance” has been derived from the Old French word “nuire” which
means “to cause harm, or to hurt, or to annoy”. The Latin word for nuisance is
“nocere” which means “to cause harm”.

Nuisance is an injury to the right of a person’s possession of his property to

undisturbed enjoyment of it and results from an improper usage by another
individual.

Definitions

According to Stephen, nuisance is anything done to the hurt or annoyance of the

tenements of another, or of the lands, one which doesn’t amount to trespass.
According to Salmond, nuisance consists in causing or allowing to cause without
lawful justification, the escape of any deleterious thing from one’s land or from
anywhere into land in possession of the plaintiff, such as water, smoke, gas, heat,
electricity, etc.

Essential elements of Nuisance

1.Wrongful act

Any act which is done with the intention to cause the infringement of the legal
rights of another is considered to be a wrongful act.

2.Damage or loss or annoyance caused to another individual.

Damage or loss or annoyance must be such which the law should consider as a
substantial material for the claim.

Kinds of Nuisance

1. Public Nuisance

The Indian Penal code defines nuisance as an act which causes any common
injury, danger or annoyance, to the people in general who dwell or occupy the
property, in the vicinity, or which must necessarily cause injury, obstruction,
danger, or annoyance to the people who may have occasion to use any public
right.

Public nuisance affects the society and the people living in it at large, or some
considerable portion of the society and it affects the rights which the members of
the society might enjoy over the property. The acts which seriously affects or
interferes with the health, safety or comfort of the general public is a public
nuisance.

Instances where an individual may have a private right of action in respect to a

public nuisance:

He must show the existence of any personal injury which is of a higher degree
than the rest of the public.
Such an injury has to be direct and not just a consequential injury.

The injury must be shown to have a huge effect.

2. Private Nuisance

Private Nuisance is that kind of nuisance in which a person’s use or enjoyment of

his property is ruined by another. It may also injuriously affect the owner of the
property by physically injuring his property or by affecting the enjoyment of the
property. Unlike public nuisance, in private nuisance, an individual’s usage or
enjoyment of property is ruined as distinguished from the public or society at
large. The remedy for private nuisance is a civil action for damages or an
injunction or both.

Elements which constitute a private nuisance

The interference must be unreasonable or unlawful. It is meant that the act

should not be justifiable in the eyes of the law and should be by an act which no
reasonable man would do.

Such interference has to be with the use or enjoyment of land, or of some rights
over the property, or it should be in connection with the property or physical
discomfort.

There should be seeable damage to the property or with the enjoyment of the
property in order to constitute a private nuisance.

A nuisance may be in respect of either property or physical discomfort

1. Property

In the case of a nuisance with respect to the property, any sensible injury to the
property will be enough to support an action for the damages.

2. Physical discomfort

In a suit of nuisance arising out of physical discomfort, there are two essential
conditions required.
In excess of the natural and ordinary course of enjoyment of the property.

The usage by the third party should be of out of the natural course of enjoyment
from one party.

Interfering with the ordinary conduct of human existence.

The discomfort should be of such a degree that it would affect an individual in the
locality and people would not be able to put up or tolerate with the enjoyment.

What are the defences available to Nuisance?

There are many valid defences available to an action for tort, these are:

1. Prescription

A prescription is a title acquired by use and time and which is allowed by the law,
a person claims any property because his ancestors have had the possession of
the property by law.

Prescription is a special kind of defence, as, if a nuisance has been peacefully and
openly been going on without any kind of interruption then the defence of
prescription is available to the party. On the expiration of this term of twenty
years, the nuisance becomes legalised as if it had been authorised in its
commencement by a grant from the owner of the land.

The essence of prescription is explained in Section 26 of the limitations act and

Section 15 of the Easements Act.

There are three essentials to establish a person’s right by prescription, these are

Use or enjoyment of the property: The use or enjoyment of the property must be
acquired by the individual by law and the use or enjoyment must be done openly
and peacefully.

Identity of the thing/property enjoyed: The individual should be aware of the

identity of thing or property which he or she is peacefully or publically enjoying.
It should be unfavourable to the rights of another individual: The use or
enjoyment of the thing or property should be of such a nature that it should be
affecting the rights of another individual thus causing a nuisance and even after
knowing of such a nuisance being caused there must’ve been no action taken
against the person causing it for at least twenty years.

2. Statutory authority

When a statute authorises the doing of a particular act or the use of land in a way,
all the remedies whether by action or indictment or charge, are taken away.
Provided that every necessary reasonable precaution has been taken.

The statutory authority may be either absolute or conditional.

When there is an absolute authority, the statue allows the act and it is not
necessary that the act must cause a nuisance or any other form of injury.

Whereas in the case where there is a conditional authority, the state allows the
act to be done only if it can be done without any causation of nuisance or any
other form of injury.

What are the remedies for nuisance?

There are three kinds of remedies available in the case of a nuisance, these are:

1. Injunction

An injunction is a judicial order restraining a person from doing or continuing an

act which might be threatening or invading the legal rights of another. It may be
in the form of a temporary injunction which is granted on for a limited period of
time which may get reversed or confirmed. If it is confirmed, then it takes the
form of a permanent injunction.

2. Damages

The damages may be offered in terms of compensation to the aggrieved party,

these could be nominal damages. The damages to be paid to the aggrieved party
is decided by the statue and the purpose of the damages is not just compensating
the individual who has suffered but also making the defendant realise his
mistakes and deter him from repeating the same wrong done by him.

3. Abatement

Abatement of nuisance means the removal of a nuisance by the party who has
suffered, without any legal proceedings. This kind of remedy is not favoured by
the law. But is available under certain circumstances.

This privilege must be exercised within a reasonable time and usually requires
notice to the defendant and his failure to act. Reasonable for may be used to
employ the abatement, and the plaintiff will be liable if his actions go beyond
reasonable measures.

Example: Ace and Beck are neighbours, Beck has a poisonous tree on his land
which overtime outgrows and reaches the land of Ace. Now Ace has every right to
cut that part of the tree which is affect his enjoyment of his land with prior notice
to Beck. But if Ace goes to Beck, land without his permission, and chops off the
entire tree which then falls on the land of Beck, then Ace shall be in the wrong
here as his action taken would be beyond reasonableness.

Q2)what is malicious prosecution?or tort against reputation?

“A judicial proceeding instituted by one person against another, from wrongful or

improper motive and without probable cause to sustain it is a malicious
prosecution.”

The Court in the same case laid down the distinction between “an action for
malicious prosecution” and “an action for abuse of process” in the following
words:-

“A malicious prosecution consists in maliciously causing process to be issued,

whereas an abuse of process is the employment of legal process for some
purpose other than that which it was intended by the law to affect the improper
use of a regularly issued process.”

ESSENTIAL ELEMENTS OF MALICIOUS PROSECUTION

Following are the essential elements which the plaintiff is required to prove in a
suit for damages for malicious prosecution:-

1.Prosecution by the defendant

The first essential element which the plaintiff is required to prove in a suit for
damages for malicious prosecution is that he (plaintiff) was prosecuted by the
defendant.[5] The word “prosecution” carries a wider sense than a trial and
includes criminal proceedings by way of appeal, or revision.[6] In the case of Musa
Yakum v. Manilal,[7] it was held that it is no excuse for the defendant that he
instituted the prosecution under the order of a Court, if the Court was moved by
the defendant’s false evidence to give the order.

It is significant to note that departmental enquiry by disciplinary authority cannot

be called prosecution.[9]

2.Absence of reasonable and probable cause

In a suit for damages for malicious prosecution, the plaintiff has also required to
prove that the defendant prosecuted him without reasonable and probable
cause. The question relating to want of reasonable and probable cause in a suit
for malicious prosecution should be decided on all facts before the Court.[10] In
the case of Antarajami Sharma v. Padma Bewa,[11]it has been said that law is
settled that in a case of damages for malicious prosecution, onus of proof of
absence of reasonable and probable clause rests on the plaintiff.

The existence of reasonable and probable cause is of no avail if the prosecutor

prosecuted in ignorance of it. The dismissal of a prosecution or acquittal of the
accused does not create any presumption of the absence of reasonable and
probable cause. If a man prefers an indictment containing several charges,
whereof for some there is, and for others there is not, probable cause, his liability
for malicious prosecution is complete.[12]

3.Defendant acted maliciously:-

In a suit for damages for malicious prosecution, it is another essential element

which the plaintiff is required to prove that the defendant acted maliciously in
prosecuting him and not with a mere intention of carrying the law into effect.
Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but it
can be any improper purpose which motivates the prosecutor, such as to gain a
private collateral advantage.

It is not necessary that the defendant should be acting maliciously right from the
moment the prosecution was launched. If the prosecutor is innocent in the
beginning but becomes malicious subsequently, an action for malicious
prosecution can lie. If during the pendency of criminal prosecution, the
defendant gets positive knowledge of the innocence of the accused, from that
moment onwards the continuance of the prosecution is malicious.[16]

4.Termination of proceedings in the favour of the plaintiff:-

In a suit for damages for malicious prosecution, it is essential to show that the
proceedings complained of terminated in favour of the plaintiff. Termination in
favour of the plaintiff does not mean judicial determination of his innocence; it
means absence of judicial determination of his guilt.[17] Malice need not be a
feeling of enmity, spite or ill will or spirit of vengeance but it can be any improper
purpose which motivates the prosecutor, such as to gain a private collateral
advantage.

No action can be brought when the prosecution or the proceedings are still
pending. It is a rule of law that no one shall be allowed to allege of a still pending
suit that it is unjust. [18]

5.Plaintiff suffered damage as a result of the prosecution:-

In a suit for damages for malicious prosecution, it is another essential element

which the plaintiff is required to prove that The plaintiff suffered damage as a
result of the prosecution. In a claim for prosecution, the plaintiff can thus claim
damages on the following three counts[19]:-

Damage to the plaintiff’s reputation,

Damage to the plaintiff’s person,

Damage to the plaintiff’s property.

MALICIOUS CIVIL PROCEEDINGS

In the case of Darbhangi Thakur v. Mahabir Prasad,[20] it was held that unlike
malicious criminal prosecution, no action can be brought, as a general rule, in the
case of civil proceedings even though the same are malicious and have been
brought without any reasonable cause.

In the case of Genu Ganapati v. Bhalchand Jivraj,[21] it was held that following are
the essentials to establish malicious abuse of civil proceedings:-

Malice must be proved.

The plaintiff must allege and prove that the defendant acted without reasonable
and probable clause and the entire proceedings against him have either
terminated in his favour or the process complained of has been superseded or
discharged.

The plaintiff must also prove that such civil proceedings have interfered with his
liberty or property or that such civil proceedings have affected or likely to affect
his reputation.

Remedies for malicious prosecution

The plaintiff may claim compensation or punitive damages.

Public law remedy

The Malicious Prosecution infringes the fundamental rights of the accused

person. The charged can invoke writ jurisdiction below article and then achieve
from the writ courts the comfort of providing compensation to the victim who
suffered physical, intellectual, and social damage.

Q4)what is defamation ? or tort against reputation?

A man’s reputation is considered valuable property and every man has a right to
protect his reputation. This right is acknowledged as an inherent personal right
and is a jus in rem i.e., a right good against all persons in the world. Defamation
refers to any oral or written statement made by a person which damages the
reputation of another person. As per Black’s Law Dictionary, defamation means
“The offence of injuring a person’s character, fame, or reputation by false and
malicious statements”. If the statement made is written and is published, then it
is “libel”. If the defamatory statement is spoken, then it is a “slander”.

Elements of Defamation

1.The Statement should be made- A statement can be made by words either

spoken or intended to be read, or by signs or by visible representations. For
example, A is asked who stole B’s diamond ring. A points to C, intending to cause
everybody to believe that C stole the diamond ring. This is defamation.

2.The Statement must refer to the plaintiff- The defamatory statement must
refer to the person, class of persons or the trustees of a company. The reference
may be express or implied. It is not necessary that the plaintiff has to be
mentioned by name, if he can still be recognized. The person referred to in the
defamatory statement can be living or dead, however, defamation suit on behalf
of a dead person can be filed only if the person filing the suit has an interest.

3.The Statement must be defamatory- Defamation starts with someone making a

statement, and any person who makes a defamatory statement can be held liable
for defamation. A defamatory statement tends to diminish the good opinion that
others hold about the person and it has the tendency to make others look at him
with a feeling of hatred, ridicule, fear or dislike. Abusive language may also be
defamatory, for example, to call a man hypocrite or a habitual drunkard. A few
illustrations to understand what is defamatory and what is not. To say a motorist
drives negligently is defamatory. To criticize goods is not defamation. To say that
a baker’s bread is always unwholesome is defamatory. To state that a person has
not that degree of skill which he holds himself as possessing is defamatory.

4.The intention of the wrongdoer- The person making the defamatory statement
knows that there are high chances of other people believing the statement to be
true and it will result in causing injury to the reputation of the person defamed.
5.The Statement should be false- A defamatory statement should be false
because the truth is a defence to defamation. If the statement made is true then
there is no defamation as the falsity of the statement is an essential ingredient of
defamation. The law does not punish anyone for speaking the truth, even if it is
ugly.

6.The Statement should not be privileged- In some cases, the statements may be
privileged i.e. the person who has made the statement is protected from such
liability.

7.The Statement must be published- For defamation to occur, the statement

should be published. The statement should be communicated to a third party.
Any statement written in a personal diary or sent as a personal message does not
amount to defamation, but if the sender knows that it is likely that a third person
may read it, then it amounts to defamation. In Mahendra Ram v. Harnandan
Prasad, the defendant was held liable because he had sent a defamatory letter
written in Urdu despite knowing the fact that the plaintiff could not read Urdu
and ultimately the letter will be read by someone else.

8.The third party believes the defamatory matter to be true- The other people of
the society believe that the defamatory matter said about the plaintiff is true.

9.The Statement must cause injury- The statement made should harm or injure
the plaintiff in some way. For example, the plaintiff lost his job because of the
statement made.

Defences available against Defamation

1.Justification by truth

Truth is an absolute defence. If the statement made is authentic then it does not
constitute defamation. The burden of proof is on the defendant who is claiming
the defence. For instance, X makes a statement in an interview about Y indulging
in gambling and Y files a suit against him. If X is able to justify or prove it, then Y’s
claim will be dismissed. In Radheshyam Tiwari v. Eknath, the defendant was
unable to prove the facts published by him and therefore was held liable for
defamation.

2.Fair and bonafide comment

Nothing is defamatory which is a fair comment in the matter of public interest.

The defendant can avail this defence when he has merely made a fair comment in
a matter of public interest. This defence is based on public policy which gives
every person the right to comment and criticize without any malicious intention
the work or activities of public offices, actors, authors and athletes as well as
those whose career is based on public attention. Any fair and honest opinion on a
matter of public interest is also protected even though it is not true. There is no
definition of a matter of public interest. Generally, a matter of public interest can
is a subject which invites public attention or is open to public discussion or
criticism.

The main principles relating to the defence of fair comment have been stated by
Duncan and Neill as follows:

a) the comment should be on a matter of public interest;

b) The comment must be based on facts;

c) The comment, though it can include inferences of fact, must be recognizable as

a comment;

d) The comment must satisfy the following objective test; could any man honestly
express that opinion on the proved facts;

e) Even though the comment satisfies the objective test the defence can be
defeated if the plaintiff proves that the defendant was actuated by express
malice.

3.Fair comment and justification distinguished

The plea of fair comment is available only in respect of both facts and opinion, it is
not necessary to prove the truth of the comment. When justification is pleaded in
respect of matters of opinion, the defendant must prove not only that he honestly
held the views expressed but also that they were accurate.

4.Absolute Privilege

It gives the person an absolute right to make the statement even if it is

defamatory, the person is immune from liability arising out of defamation lawsuit.
Generally, absolute privilege exempts defamatory statements made:

during judicial proceedings,

by government officials,

by legislators during debates in the parliament,

during political speeches in the parliamentary proceedings and,

communication between spouses.

5.Parliamentary privilege in the Indian Constitution

Article 105 and 194 of the Indian constitution gives certain rights, immunity to the
members of the Houses of Parliament. The members of the Parliament have been
vested with the freedom of speech. This freedom is different from the freedom of
speech and expression guaranteed under Art. 19(1)(a), as the freedom in Art. 105
and 194 are specifically for the members of the Parliament and is subject to rules
and orders which regulate the parliamentary proceedings. Art. 19(1)(a) does not
protect an individual absolutely for what he says and is subject to reasonable
restrictions under Art. 19(2). The term freedom of speech in Art. 105 states that a
member of Parliament shall not be liable to any proceedings, civil and criminal, in
any court for the statements made in debates in the Parliament. The second
clause of Art. 105 confers immunity, inter alia, in respect of anything said in
Parliament the word anything is of the widest import and is equivalent to
everything. The only limitation is that the words must be spoken during the sitting
of the Parliament. This freedom is given even to non-members like the Attorney
General of India so that every member can participate freely in the debates and
discussions without any fear. In P.V. Narsimha Rao v. State (JMM Bribery Case),
the apex court held that the privilege in Art. 105(2) which gives immunity from
court proceedings extends even to taking of bribes by the members of Parliament
for the purpose of voting in a particular manner in Parliament.

6.Qualified Privilege

When a person making the statement has a legal, social or moral duty to make it
and the listener has an interest in it, then the defence of qualified privilege is
allowed. Following are the instances where this defence can be availed of:

Reference for a job applicant,

Answering the police inquiries,

A fair criticism of a published book or film in a review,

communication between parents and teachers,

communication between employers and employees,

communication between traders and credit agencies are all relationships that are
protected by qualified privilege.

7.Statement of Opinion

If the statement made is an opinion and not a statement of fact, then it cannot
be defamatory. For example, if a person says that he finds an actor ugly, the
statement is just an opinion. However, if he says that the actor is a drug addict or
has had multiple affairs, then it will be a defamatory statement. If this statement
results into the actor losing work or his job and the statement made are false,
then there will be a case for defamation.

8.Consent

If the plaintiff consents to the statement made, then there is no defamation. The
consent of the plaintiff gives absolute privilege to the publisher, it is immaterial
whether the plaintiff knew that the information approved for publication was
defamatory or not. Consent may be given by words or actions, including inaction.
If the consent is obtained fraudulently or from a person of unsound mind then it
will be invalid.

9.Censure passed in good faith by the person having lawful authority

It is not defamation of a person having over another authority either conferred by

law or arising out of the lawful contract made with another to pass in good faith
any censure on the conduct of that other in matters to which such lawful
authority relates. For instance, a judge censuring the conduct of a witness or a
banker censuring the cashier of his bank or, an engineer submits a report to the
municipality that the contractor had taken away the stock of metal. If the
engineer has made the report in good faith, then he will not be liable for
defamation.

10.The accusation made in good faith to the authorized person

An accusation made in good faith against a person who has lawful authority over
that person is not defamation. It is not necessary for the person making
allegations to prove that his allegations were true but he must prove that there
were reasonable grounds for him to believe in the allegation. If a person signs a
petition to the chairman of Lucknow Development Authority against defective
construction of houses, along with several other residents of the locality, he can
say to have acted in good faith.

Difference Between Civil Defamation And Criminal Defamation

1.civil defamation- It is a civil wrong.

criminal defamation- It is a criminal offence, which is bailable, non-cognizable

and compoundable .

2.civil defamation- It is based on tort law- an area of law which has no statutes to
define wrongs and relies completely on case laws to define wrongs.

Criminal defamation-It has been defined as an offence under Section 499 and the
punishment for the same is given in Section 500 of the Indian Penal Code, 1860.
3.civil defamation- It provides redressal to the plaintiff by awarding damages in
the form of monetary compensation from the accused.

Criminal defamation-It seeks to punish the offender and send a message to the
society not to commit such an offence.

4.civil defamation- Damages are awarded on the basis of probabilities.

Criminal defamation-The offence of defamation has to be established
beyond a reasonable doubt.

5.civil defamation- It is generally a slow process to seek relief in India.

Criminal defamation-The plaintiff can move to criminal court and ask the offender
to take cognizance of his complaint.

6.civil defamation- A person found guilty can be penalized only by making him pay
damages.

Criminal defamation-A person found guilty can be punished with imprisonment

up to two years or fine or with both.

Q6)what is Assault?or tort against person?difference between assault and

battery?civil assault v/s criminal assault?

In common law, assault is a tort, an act of the defendant which causes to the
plaintiff reasonable apprehension of the infliction of a battery on him by the
defendant. When the defendant creates his act by an apprehension in the mind of
the plaintiff that he is going to commit battery against the plaintiff, the wrong of
assault is completed. The wrong consists of an attempt to do harm rather than
the harm being caused thereby. In assault charges must include conduct that is
offensive which is offensive or causes another person to the fear of their safety.
This clearly means that one can be guilty of assault even if he/she did not
physically harm the victim. In the case of R. v. S. George, the pointing of loaded
gun to another is an assault. If the pistol is not loaded, then even it may be an
assault, if pointed at such a distance that it may cause injury. if a person advances
the manner of threatening to use force , then there is assault. This was decided in
the case of Stephens v. Myers.
Elements of Assault

If one or more elements have not been satisfied then It can be a defense to an
assault charge. Elements of the crime of assault are:

An act or conduct intended to created: To prove a criminal attack, the

defendants’ behaviour must be motivated to create a situation of fear or danger
in the victim’s mind. Accident acts do not include allegations of assault.

A reasonable apprehension: Further, the victim must reasonably believe that the
defendant’s conduct will harm or humiliate him. The victim must understand the
defendant’s potentially harmful or offensive acts.

Of imminent harm: The victim’s fear must be a direct response to a threat that is
imminent. Future threats, such as “I will beat you tommorrow”, will not result in
assault charges. In addition, there must be some kind of perceived physical threat
to the victim in the loss; For this reason, words by themselves generally do not
constitute an attack.

It is believed that the defendant’s actions would cause physical danger or abusive
behaviour to the victim. Thus, the pretence of kicking or punching the victim may
be an attack, as will attempt to spit on the victim (aggressive behaviour).

All of the above elements must be present and the evidence must be supported
with evidence if found guilty for the attack.

It can be difficult to prove whether the defendant actually intended the attack.
Similarly, judges often spend a lot of time determining whether a defendant’s
actions are considered harmful or abusive. In determining this, they will consider
what an average person may perceive as harmful or aggressive.

Difference between Assault and Battery

1.Assault is the attempt to commit battery.

Battery includes intentional application of force to another person without any

lawful justification.
2.Threat of violence is enough for assault. No physical contact is necessary.
But Physical contact is needed in case of battery.

3.in case of assult, Create reasonable apprehension in the plaintiff’s mind that
immediate force will also be used.

In case of battery There should be use of force and The same should be, without
any lawful justification.

4.objective of assult is To threaten a person.

But in battery the objective is To cause harm.

5.the Nature of assult is Not necessarily physical.

But the nature Must be physical in case of battery.

Difference between Criminal and Civil Assault

1. In civil assault, to sue the respondent for the full extent of his loss, including
lost earnings and pain and suffering of the past and future.

In civil assult If the respondent is convicted, he may be imprisoned, and may also
have to pay a fine and reinstatement. But the fine would be paid to the
government, and restitution would most likely cover only the medical bills, not
your non-economic losses such as pain and suffering stemming from the incident.

2.In civil assault case, a District Attorney is not involved. The matter is brought by
the plaintiff. The plaintiff has more control in the case of civil assault.A win for the
District Attorney, results in jail term, a fine, or both.

In case of criminal assult After an attack, the victim should report to the police.
The police will then make an arrest, take action on the alleged attacker and refer
the case to the District Attorney.

3. in case of civil assult A win for the District Attorney, results in jail term, a fine,
or both.
In case of criminal assult When the plaintiff wins, the defendant will not go to jail,
but will have to pay financial compensation.

Legal defenses on charges of Assault

As with other types of criminal charges, there may be some defenses to assault
charges. This will depend on each individual case, as well as other factors such as
state law. Faults commonly charged with assault charges include:

Self-defense: This could be a defense if the defendant was acting out of self-
defense. They should only use the amount or display of force that is appropriate
in the situation and in proportion to the force being used against them.

Intoxication: In some cases, intoxication can be a legal defense, especially in cases

where intoxication affects a person’s ability to act intentionally.

Coercion: This may be a defense if the defendant was forced to attack under
threat of harm (for example, if they are being held at gunpoint and for assault at
the behest of someone).

Lack of proof / proof: As stated above, if the elements of proof are not found or
supported with the correct evidence, it can serve as a legal defense.

Many other types of avoidance may exist depending on the circumstances.

Remedies

Action for damages- Whenever the plaintiff has been wrongfully detained, he can
always bring an action to claim damages. Compensation may be claimed not only
for injury to the liberty but also for disgrace and humiliation which may be caused
thereby. According to McGregor on damages, the details of how the damages
worked in false imprisonment are few: generally, it is not a pecuniary loss or of
dignity and is left to the jury and their discretion. The principle heads for damage
would appear to be the injury to liberty, i.e., the loss of time considered primarily
from a non-pecuniary viewpoint, and the injury to feelings, i.e., the dignity,
mental suffering, disgrace and humiliation with any attendant loss of social status.
Self help– This is the remedy which is available to a person who while he is still
under detention instead of waiting for legal action and procuring his release
thereby.

Habeas Corpus– It is speedier remedy for procuring the release of a person who is
wrongfully detained. Such a writ may be issued either by the Supreme Court
under Article 32 or by a High Court under Article 226 of Indian Constitution. By
this writ person detaining is required to produce the detained person before the
court and justify the detention. If the court finds the detention is without any just
or reasonable ground, it will order that the person detained should be
immediately released.

It is just possible that the person wrongfully detained may have been set free by
the time the writ of habeas corpus is disposed off. The court hearing the petition
may grant compensation as ancillary relief in such cases . in the case of Rudal
Shah v. State of Bihar and Bhim Singh v State of J&K, the Supreme Court granted
such compensation in writs of habeas corpus.

Q7)what is battery ?or tort against person ?

Purposely touching or applying force on other persons or things related to the

person without his consent with the intention to harm the person is known as a
battery. It is only considered when there is an actual physical contact without the
consent of the person to harm the person. Generally, assault is followed by the
battery which is the reason assault and battery are mostly used together.

The battery is often considered as trespass to a person, so it is divided into two

types:

1.Criminal Battery

Criminal Battery is also known as the battery as a crime. Whenever there is an

intention to kill a person or to hurt the person with an offensive physical contact
is considered as the battery of crime. In a criminal battery, intention plays a major
role as the action involves intention to kill a person.

2.Civil Battery
Civil Battery is also known as the battery as a tort because it is a civil wrong.
When a person has no intention to hurt someone but commits an act which hurts
another person and the wrongdoer had an idea that the act will hurt another
person is known as a civil battery. As the battery is considered as an intentional
tort, but in the civil battery the ,intention to hurt someone is not present, so the
victim can lodge a complaint against the wrongdoer under civil court.

Essentials for the battery are:

1.Intention

The intentions for both civil battery and criminal battery are different. Criminal
intent to cause the injury is not necessary but the intention to cause the act which
harms the person is required as it results in the battery.

The intent of the battery is transferable as when a person tries to hit a person
without his consent and he ends up hitting a different person, but the person is
still liable for battery. So, the intention is the soul of battery and is very essential.

2.Contact

Contact or use of force is necessary for committing battery. Harm through the
force is not basic requirement but the use of force is basic requirement to
conduct battery. It is not necessary that the contact must be physical or individual
but the physical contact through indirect ways is also considered as physical
contact. As the use of sticks or spitting on someone is also considered as a
battery. Harming the people with changing the heat, odor, light is also considered
as a battery.

The battery doesn’t need body-to-body contact as the battery can also be for
future events which means if there is a delay between the accused actions and
the injury of the complainant will still be a battery. For eg, A mixes something
harmful in the food of B even after he knows the fact that B will eat that, A has
committed a battery against B.

3.Harm
Damage is necessary for the completion of the battery. Damage can be of any
kind, it can be physical, mental, or emotional. Battery is not limited to physical
damage. The victim must have suffered in any manner but the harm can be
minimum, severe damages are not required. Unwanted sexual contact or
uncomfortable touching without the consent also comes under battery as it
harms the person physically, emotionally, and mentally.

4.No Consent

The victim must not know about the action which is planned by the accused. The
battery is only committed when the victim had no idea about the contact which
was going to happen. For example, when surgeons steal organs from patients to
sell them will be considered as a battery. And when the doctor while doing a
surgery finds that the appendix in the body will cause some trouble during the
surgery and the doctor informs the patient that he is going to remove the
appendix, in this situation, the doctor is not liable for the battery as there was the
consent of patient involved.

5.No Lawful Justification

In the event of proving battery, there mustn’t be any legal justification present to
justify the actions of the accused. The complainant has to prove that the force
used by the accused was unlawful and was not justifiable. For example, A and B
were walking side by side, suddenly B started fighting with A, in this situation B is
liable for battery but in the other situation when they were passing and there was
an unintentional touch without harming anyone, in this situation, there wasn’t
any battery. So, unintentional damages or damages by accidents are not
actionable.

Defenses

There are certain defenses given to the accused to prevent themselves from
wrongful accusation:

1.Self Defense
Self-Defense is the most common defense which is used in assault and battery
cases. It means to protect yourself from unlawful force implied by other people.
In this defense, it is proved that the defendant was safeguarding himself from the
unlawful force of the complainant. But in this case, the defendant must prove that
he did not provoke the other person and there was absolutely no other way to
save himself.

For example, A started a fight with B, in his defense B attacked A with a stick and
ran away, in this situation B is not liable for the battery as the attack was justified
and was in self-defense.

There are many limitations to the doctrine of self-defense, as the force used in
the name of self-defense must be reasonable and proportional to the threat
compared to the victim. You can not do anything in the name of self-defense, as
there are limitations to the defense. And the defendant has to meet all the
essentials to use the defense of self-defense.

Essentials of self-defense are:

The threat of unlawful for or damages.

Reasonable fear of harm.

No provocation by the accused.

No other way to save himself.

2.Defense of Others

This defense is similar to self-defense, as in this defense the defendant is trying to

save another individual, not himself. In this defense, there must be an honest and
reasonable fear of harm to another person.

3.Defense of Property

This defense is also very similar to self-defense, as in this defense the defendant is
trying to protect his property, but the force used is only considered when there is
an unlawful use of force against the defendant. The defense is only valid when
there is an honest and reasonable fear of harm to the person’s property. So, in
cases of disputes over personal property, the owner can use force to take his
property back.

Consent

Consent can also be considered as a defense in the case of assault and battery.
Consent is when the person voluntarily agrees to the intention of the defendant.
So, when the individual has given his consent to perform the act, then that same
act can not be considered as a battery. But in situations when the person exceeds
the extent of the act, on those grounds the act can be considered as a battery.

These were the defenses that can be used when a person is facing charges for
assault and battery.

Remedies

There are different remedies available under the law of tort:

1.Legal Remedies

Legal remedies are also known as damages, which is compensation given by the
defendant to the plaintiff to compensate for the injuries, pain, or the sufferings
given by the defendant. The compensation is directly proportional to the victim’s
loss not to that of the defendant’s profits. The damages are considered as the tort
claims and the compensation received by the plaintiff through the Court are
known as pain and suffering damages.

2.Restitutionary Remedies

These remedies try to restore the position of the plaintiff as close as possible to
the state before all of it happened. This remedy includes:

Restitutionary Damages: These damages are similar to damages but in this, the
compensation is calculated through the defendant’s gains, not the plaintiff’s loss.

Replevin: This helps the victim to recover his personal property that he lost
because of the battery.
Ejectment: In this remedy, the court helps in ejecting the person who is staying
unlawfully in the person’s property. This remedy is mostly used in cases of
trespass.

Property Lien: In the situation when the defendant can not pay the damages, the
judge can lien the property or sell the property as per the situation demands, to
pay damages to the victim.

3.Equitable Remedies

These are the remedies used when the monetary damages can not restore the
initial stage of the victim. These remedies include:

Temporary Restraining Order: In the cases of assault and battery, when the
defendant has physically harmed or harassed the victim, then the victim can
obtain a restraining order which prevents the defendant from making any contact
with the plaintiff or even coming close to the plaintiff.

Temporary or Permanent Injunction: These injunctions can either prohibit

unlawful activities initiated by the defendant or it can also take affirmative steps
to control the defendant.

Q8) What is False Imprisonment?or tort against person?

False imprisonment occurs when a person is intentionally restricted by another

person in a bounded area without legal justification or consent. It is not the
degree of imprisonment that matters, but the lack of lawful justification is
important.

This applies to both private as well as government detention. When the restraint
is total and the person is prevented from going out of certain limits, the offence is
that of wrongful confinement as defined in Section 340 of IPC. [2] The Indian
Penal Code punishes wrongful imprisonment under sections 339-348. [3] In case
of wrongful arrest by police authorities, proving false imprisonment is enough to
obtain the writ of Habeas Corpus. The person doesn’t need to be put behind bars,
but he must be confined in an area from which there are no possible ways of
escape except the person’s will that has confined him. Depending on the laws of a
jurisdiction, wrongful imprisonment can also be a crime and intentional tort.

False imprisonment can come in many forms; physical force is often used, but it
isn’t a necessary condition. The restraint of a person may be imposed by physical
means (such as being locked in a room) or by unreasonable means (like keeping
someone’s jewellery, with the intent to force them to remain at a place).

Essential Elements of False Imprisonment

A. Wilful detention and the intention factor

The tort of false imprisonment must be intentional. A person is liable for false
imprisonment when their act is done for the purpose of restricting/confining
someone or with the knowledge that such confinement, to a high certainty, will
result from it. False imprisonment or restraint must be willful. Accidentally closing
the door and thus locking someone does not constitute false imprisonment. For
this tort, Malice is irrelevant.

B. Knowledge of the plaintiff

It is not necessary that the plaintiff alleging false imprisonment had the
knowledge of this restraint at the time of his confinement. Proof of a total
restraint of freedom is sufficient.

Now the question arises. What if the plaintiff is in a particular room and the
defendant decides that if a plaintiff attempts to leave the room or building he will
prevent the plaintiff from doing so but because the plaintiff has not yet
attempted to leave the room, the defendant has not actually done anything yet to
prevent the plaintiff from leaving the room? Has the defendant falsely imprisoned
the plaintiff?

This can be illustrated with the help of a case.

In the case of Herring v Boyle, [4] a schoolmaster wrongfully refused to permit a

schoolboy to go with his mother unless she paid an amount alleged to be due to
her son. The court held that the refusal to the mother without his being aware of
the restraint does not amount to false imprisonment.

C. Place of Confinement

Any confinement, whether be it prison or any place used temporarily for the
purpose of confinement constitutes false imprisonment. It is enough that the
plaintiff in any manner has been completely deprived of his liberty, for even the
shortest of the time period.

If the plaintiff is restricted from going in certain directions and he is free to go in

other directions, there will be no action for false imprisonment. If a person has
induced another to put himself in a place which is impossible to leave without
such person’s assistance, by words or by other conduct, the refusal to give such
assistance in order to detain the plaintiff is sufficient to make such a person liable.

To prove the tort of false imprisonment, the following elements are necessary:

There was willful detention.

The detention was without consent.

The detention was unlawful.

To claim false imprisonment, the plaintiff must reasonably believe that he was
confined. Court will determine whether the belief is reasonable by comparing it to
what an average reasonable person would do under such circumstances.
Additionally, the defendant must have the intent to commit the confinement
without lawful justification.

Examples of false imprisonment may include:

A watchman detains someone for an unreasonable amount of time-based on their

physical appearance.

Owner of the company who detains someone for questioning for an unreasonable
amount of time for suspected theft.
A doctor who medicates a patient without their consent under physical or
emotional threat.

The following examples don’t constitute false imprisonment:

A person who grabs your arm but you know you can free yourself from him
without fear.

A shopkeeper who detains you for a reasonable amount of time for questioning
on basis of a cause, such as if he saw you take an item out of the shop without
paying for it

A person who closes the door and asks you not to leave, but you know you can
leave through an alternate exit.

Defences of False Imprisonment

Defence against false imprisonment is the lack of one of the elements, like:

A. Valid Arrest

If a person was detained due to lawful arrest, if they have probable cause to
consider a person to have committed wrongdoing; false imprisonment claims are
not valid in this case.

B. Consent to Restraint

Voluntary consent to false imprisonment is often a defence to false

imprisonment. A person who consents to be confined without the presence of
force/ fraud/coercion cannot claim to be a victim of false imprisonment. The
maxim volenti non fit injuria applies to the tort of false imprisonment.

C. Probable Cause

The existence of probable cause is an absolute defence to claims for false

imprisonment. Probable cause is defined as a state of facts that leads a man of
reasonable prudence to hold an honest suspicion that the person accused is guilty
of the offence charged.
Sometimes imprisonment can be justified if the defendant was acting to support
the law. The burden for the legal justification lies on the defendant.

Remedies

False imprisonment may be because of malicious intent or negligence but the

sufferer is the plaintiff, hence while awarding the compensation the place of
confinement, time of confinement and force used by the defendant must be kept
in mind. These steps will make sure that every person gets due justice.

The tort of false imprisonment is a severe violation of human rights. Prisoners

have human rights because ‘prison torture is not the last drug in the Justice
system but a confession of failure to do justice to a living man.’ [8] Article 21 and
Article 20 re-enforces the same and seek to protect convicts from being let down
due to ex post facto laws (Article 20 (a)), double jeopardy (Article 20 (b)) and self-
incrimination (Article 20 (c)).[9] However, there are certain remedies available:

A. Action for loss

A person injured by conduct, either knowingly or unknowingly, is entitled to

damages. The assessment of damages in false imprisonment cases is left entirely
to the court. The basis of the damage includes physical pain to the person, mental
suffering and humiliation, loss of earnings and interruptions in occupations, injury
to reputation etc.

The arresting officer is liable for the loss of time caused by the false arrest for the
time between the arrest and the production of the person before the judicial
officer. However, where continuity is there between a false arrest and discharge
of the accused, as a continuing unlawful act, the defendant is liable for injuries

B. Compensatory damages

The general rule in an individual personal tort action is that the plaintiff is entitled
to recover an amount that would be equitable. False imprisonment constitutes
the basis for the recovery of at least nominal damages, but an award of nominal
damages only may be insufficient where the facts have proved the right to greater
damages. Mental hurt including fear, shame and hatred of arrogance and
humiliation, is generally considered an injury that can be compensated for the
action of false imprisonment.

C. Punitive, exemplary and aggravated losses

If false imprisonment has recklessly affected the person and constitutes extortion,
dishonour, and libel, the jury may go state exemplary and punitive damages to
the defendant as punishment. Punitive damages are awarded in cases where the
conduct of the defendant is grossly indifferent to the rights of others or knowingly
violates those rights. Exemplary damages are provided in certain circumstances
when power is misused by the State. Courts have often held that malice in the
action of false imprisonment will result in an award for exemplary or punitive
damages. Punitive or exemplary damages will not be allowed where false
imprisonment was brought in utmost good faith, without malice in law and where
no violation of rights took place.

D. Habeas corpus

This writ is considered an effective remedy for immediate release from false
imprisonment whether in jail or by a private entity according to English law. The
Supreme Court of India and the High Court of States issue this writ under Articles
32c [13] and 226 [14] respectively. It deals with cases of false arrest or prolonged
imprisonment by police officers. Where unlawful detention continues, the
plaintiff may seek this writ. This writ is also used in criminal cases of false
imprisonment. The decision will be that either the prisoner will be released or if
the detention is proved then he will be produced before the court for a trial.

E. Self Defense

A person who is unlawfully imprisoned may use self-help to free himself with
reasonable force. This is a risky method since if an innocent person finds a
reasonable basis for their suspicion, then an innocent person who forcibly resists
detention may be liable for battery.

Q9)what is remoteness of damages?and it’s test?

 When a person commits a tort, it has consequences, these consequences in
return may have more consequence therefore further leading to a chain of such
events. The doctrine of the remoteness of damages is a method or test used to
calculate the losses caused due to wrongdoing or breach or to what extent the
previously mentioned chain consequences is the defendant responsible for. By
this method, the liability of the defendant within reasonable bounds is decided
through certain tests.

The General Principle

The general principle behind the doctrine of the remoteness of damage was laid
down in the Court of Exchequer, in the case of Hadley v. Baxendale, the plaintiff’s
mill had come to a stop because of a break in their crankshaft. The defendant
failed to deliver the broken crankshaft to the manufacturer within the agreed
time, which in turn led to delay in restarting the mill. The plaintiff bought a case
against the defendant to recover the profits lost because of the delay in restarting
the mill. The profits of the mills should be stopped by an unreasonable delay in
the delivery of the broken crankshaft to the third person held by the court while
rejecting the claim.

The rule guiding the judges in such cases is when a contract between two parties
is breached by one of them, the other party is entitled to receive damages but
only if the breach of contract has arisen naturally, fairly and reasonably.

For example- A drunk driver crashed into a truck, which then in turn collided with
the side of a small building, leading to the collapse of the building and death of 50
people. The collapse of the building and debris fell onto its surroundings killing
more people.

Now in the above example, one can see how one accident had multiple
consequences, even though they were not intended nor comprehended
beforehand by the defendant. Now in such scenarios on whom does the blame of
so many deaths fall? The answer to this question was given by Lord Wright in the
case of Liesbosch Dredger v. S.S. Edison-
“The Law cannot take responsibility for all the consequences of a wrongful act;
some acts fall outside the scope of its selection, because it was infinite of the law
to judge the causes of causes, or consequences of consequences. In the varied
web of affairs, the law must abstract some consequences as relevant, not perhaps
on grounds of pure logic but simply for practical reasons.”

It was ultimately held by the jurists that the defendants will be liable only for the
consequences which were proximate and not remote consequences of his
wrongdoing.

Test of Remoteness

Now that we’re aware of, a defendant is held liable for only the proximate
consequences of his wrongdoing. Let us look at how it is decided that what
consequences are proximate and which remote-

1. All Direct Consequences Test

An individual is held liable for all his direct consequences, even if one could not
foresee them beforehand as all consequences which directly come after the
wrongdoing are not remote and come under proximate. Further under this test, if
one could foresee the damages, one is held liable for all the direct consequences.

2. The Foreseeability Test

Today this test is preferred over the directness test. Sir Frederick Pollock also
advocated for this test, He opined, in cases Rigby v. Hewitt and Greenland v.
Chaplin, that the “liability of the defendant is only for those consequences which
could have been foreseen by a reasonable man placed in the circumstances of the
wrongdoer.” In this test, an individual is held liable only for the reasonably
foreseeable consequences of his wrongdoings. It is to be decided by the court if
the consequence was foreseeable beforehand or not.

Q10)what is NOVUS ACTUS INTERVENIENCE?

Novus actus interveniens is Latin for a new intervening act. In the Law of Delict
6th Edition, Neethling states that a Novus actus interveniens is an independent
event which, after the wrongdoer's act has been concluded either caused or
contributed to the consequence concerned. A novus actus breaks the causal chain
between the initial wrongdoer's action and the liability that is imputed to him or
her as a result thereof.

A requirement for an act or omission committed after the initial wrongdoer's act
to constitute a Novus actus is that the secondary act was not reasonably
foreseeable. If the subsequent event was reasonably foreseeable at the time of
the initial wrongful act, it is not to be considered as a novus actus capable of
limiting the liability to be imputed on the initial wrongdoer.

As a general rule, the damage is said to be too remote where it is caused by the
intervening act of human volition of a third party, or when the injury to the
plaintiff might have been occasioned by the intervening act of volition on the part
of the plaintiff himself. The question of whether an initially negligent person,
would be liable for all the consequences ad infinitum, expected or unexpected,
probable or improbable, depends for its answer upon the application of a further
test which has recently come into prominence, that is, the test of isolation.

According to this test, where the wrongful act is isolated from the consequences
is deemed to have been snapped, and the defendant ceases to be liable for such
consequences as having arisen after the intervention of that other act of human
violation. The prior act having exhausted itself the chain of causation has in
contemplation of law been broken and the wrongdoer can no longer be held
responsible for further consequence.

A Novus actus is not confined to either factual or legal causation only and can
interrupt the causal chain at either point. In respect of factual causation, a novus
actus interrupts the nexus between the wrongful act of the initial wrongdoer and
the consequences of his act to such an extent that it frees him of the liability of
his actions.

However, when assessing novus actus in respect of legal causation, regard must
be had to the aspects of policy, fairness, reasonableness, and justice in order to
determine whether liability for the initial wrongful act can still be imputed to the
initial wrongdoer and whether the causal chain has been broken. A Novus actus,
therefore, disrupts the directness aspect of the initial act and the subjective test
of legal causation cannot be fulfilled.

As a novus actus is an independent intervening act, it can be occasioned by

anyone or anything other than the initial wrongdoer. This general category also
includes the injured party himself or herself, another third party, or even an act of
God. Therefore, an injured patient who walks on a slippery floor after having been
injured thereafter occasioning further surgery will have created his own Novus
actus, or where a storm causes further and greater damage to a property after it
has been damaged by a wrongdoer will also be viewed as a Novus actus.

In Weld Bundell b. Stephens, The appellant employed the respondent, a chartered

accountant to investigate the affairs of a company. He gave written instructions
which contained matter which was libelous of two officials of the company.
Respondent passed these instructions to his partner, who carelessly left them on
the floor at the company's office.

The company's manager found them and communicated their contents to the
officials who then recovered damages for the libel from the appellant. In the
instant action, the appellant could recover nominal damages only. He could not
recover upon the basis of an indemnity for his actual loss in the libel action
because the manager's action was the voluntary act of a free agent over whom
the appellant had no control, for whose actions he was not answerable.

Exceptions to the rule of Novus actus interveniens:

Where the intervening act has been intentionally procured by the defendant.

Where the intervening actor is not fully responsible.

Where the intervening act is such as could be reasonably anticipated.

Where the intervening act is a mere reflex or involuntary action.

Unit3
Q1)provisions regarding NO FAULT LIABILITY ?

The Motor Vehicles Act came into existence in 1988. It laid down rules and
regulations on all aspects of road transport, including registration of motor
vehicles, controlling their permits, traffic regulation, insurances and penalties.
Also, the Motor Vehicle Act makes it compulsory for a driver to have a valid
driving licence. Also, no vehicle can be used without a registration number.

The new Motor Vehicle Act 2019 or the Motor Vehicle (Amendment) Act 2019
was implemented in September last year. With the introduction of the new act,
several traffic fines have increased substantially and it is believed that the stricter
penalties will no help the authorities curb the menace of road accidents caused
due to negligent driving. Ubi jus ibi remedium the Latin maxim states that, where
there is wrong, there is remedy. It is an essential maxim of law of torts , where
one’s right has been invaded, the law provides for the remedy to safeguard the
right of the aggrieved. It was in the case of Ashby V. White , where the court held
that: When a person is rested with a right , he must have a means to safeguard
and have a remedy if someone violates it, and is a useless to think of a right
without providing from any remedy for its violation.

The Motor Vehicle Act, 1988 was enacted on July 1, 1988. The original Act, i.e.
The Motor Vehicle Act, 1939 was amended numerous time to keep it according to
the phase of technology and development. Later , a committee was set up in to
draft a comprehensive legislation as per the various suggestion. In amended act,
Section 140 to section 144 under chapter-X lays the provision for no fault liability.
Section 145 to 164 under Chapter -XI deals with the insurance provision
pertaining to third party claims, and Section 165 to 176 , Chapter XII, deals with
claims tribunals. This act was said to be great benefit to society as it primarily
aimed to provide the relief to persons who encounters the accidents and then are
not paid adequate compensation , that they should have to make good to their
damages.

To point out some of the welfare provisions , the act provided the driving license
to be mandatory to drive a motor vehicle , and registration of the vehicle to be
valid only for the period of fifteen years , which can be further renewed for
another five year. The act also includes various other provision for the benefit of
the road accidents victims.

Compensation under motor vehicle act :-

Rules for payment of compensation can be discussed under two sub-headings;

a. Fault based liability and

b. no fault liability

No Fault liability

It was brought to the bench of Acting Chief Justice A. Sambasiva Rao , in the case
of Haji Zakaria V. Naoshir Cama, whether the liability to pay the compensation can
be levied upon owner , even when there was no fault on his behalf or negligent
act. This was over-ruled b the Hon’ble Supreme Court of India, it was of the
opinion that, where there is no fault or negligence by the owner, there could be
no liability be imposed upon him.

Anyhow, the principle of No Fault was developed to provide the victim with some
sort of relief incase of hit and run and such cases. Being welfare state, denial of
the compensation over the fact that there was a contributory negligence on part
of the victim or where the negligence of the driver of a vehicle was not
established beyond the reasonable doubt. defeats the idea of social justice, and
so the provision was made that driver or the owner should be held without taking
the fact of contributory negligence into consideration.

There was doubt as to in which way does the principle of No-fault liability differs
from the principle of Strict liability. In the case of the No-fault liability the
compensation is fixed, on the other-hand , in the case of Strict liability liability is
not fixed, but is upon the discretion of the court. The former principle is different
from the common law principle which says that the claimant should establish the
act of negligent and rash driving on the part of owner or the driver to claim the
compensation. However, the section 140 to section 144 of the Motor Vehicle Act,
1988 provides exception to such rule.
While adjudicating in the case of Ishwarappa v/s. C.S. Gurusthanthappa, the court
held that section 140 of the act in intended to provide an immediate relief to the
victim or heirs and legal representative of the deceased person in an event of an
accident. And so the claim under section 140, is paid at the threshold of the case
proceedings.

Section 140 of The Motor Vehicle Act 1988

The act provides the provision for the payment of the compensation to the
aggrieved , in case of death or permanent disability by the vehicle of defendant ,
by himself or the driver of any such vehicle. According to section 140, No fault
liability is to be invoked when a death or permanent disability has been resulted
from an accident arising out of a motor vehicle.

In any claim made under this act, the amount of compensation be payable as
follows:

Where the accident causes the death of the a person, a fixed sum of Rs. 50,000/-
&

If causes permanent disability of any person, a fixed sum of Rs.25,000/-.

The sub-section (3) of the act makes it clear that, the burden of the pleading and
fact whether or not wrongful act, negligence, or default was committed by the
claimant or his heir or representative , the compensation under this section is not
subjected to any burden of proof on the shoulders of the claimant. The
compensation under this section is governed by No fault liability principle.

By reading section 140 and 163-A together , the intent of the act is crystal clear ,
that any claim raised under the section 163-A of this act, need not be subjected to
be examined based on any proof or pleading at the hands of the claimants , and
shall be provided relief under section 140.

Is the Section 140 to be applied retrospectively?

The matter of consideration regarding date for the determination of the

compensation is the date of the accident. The amendment to increase the
amount payable under the act was increased on 14/11/1994 from Rs.25,000/- to
Rs.50,000/- for causing death. The following provision is not retrospectively, and
so if any accident occurs before 14/11/1994 , the compensation shall be paid Rs.
25,000/- only. For filing claim under sec. 140 , it is not mandatory for precedent
that the primary claim petition under section. 166 be filled. Even though the the
claim petition is not filled under or if the claim is dismissed failing the limitation
period, an application for claim under sec. 140 cannot be dismissed on the similar
ground.

No-fault liability or absolute liability arises due to accidents over the road. It
basically means another party who was involved in the accident has to pay
compensation to the victim. He can’t sidestep himself from the liabilities by
arguing that it was not his negligence or mistake. Whether it was the negligence
of the victim or not, the driver or owner of the car will pay compensation to the
suffering party. Section 140 to section 144 of the Motor Vehicle Act, 2019 deals
with no-fault liability. Section 140 of the Motor Vehicle Act, 2019 states that if a
person died or permanently disabled due to the accident then the owner of the
vehicle would be equally liable to pay compensation. A sum of 50,000 shall be
paid on the death of any person while 25,000 rupees to those who became
permanently disabled. This section is claimant centric as they are not required to
prove that the act was done wrongfully or was due to the negligence of the owner
or owners of the vehicle. S. Kaushnum began v. New India Assurance Co. Ltd
(2001):can be the case for it. While the fault liability arises when one is at a fault
or is negligent.

Q2)WHAT IS THIRD PARTY INSURANCE INSURANCE IN MOTOR VEHICLE

INSURANCE?

India, under the provisions of the Motor Vehicles Act, 1988, it is mandatory that
every vehicle should have a valid Insurance to drive on the road. Any vehicle used
for social, domestic and pleasure purpose and for the insurer's business motor
purpose should be insured.

Insurance is a contract whereby one party, the insurer, undertakes in return for a
consideration, the premium , to pay the other, the insured or assured, a sum of
money in the event of the happening of a , or one of various ,specified uncertain
events.

Insurance developed from the fourteenth century as a means of spreading huge

risks attendant on early maritime enterprises; life and fire insurance developed
later. The main classes of insurance are life and other personal insurance, marine
insurance, accident or property insurance and liability insurance when the sum
becomes payable when legal liability is incurred as for personal injuries or
professional negligence to another.

Motor third-party insurance or third-party liability cover, which is sometimes also

referred to as the 'act only' cover, is a statutory requirement under the Motor
Vehicles Act. It is referred to as a 'third-party' cover since the beneficiary of the
policy is someone other than the two parties involved in the contract i.e. the
insured and the insurance company. The policy does not provide any benefit to
the insured; however it covers the insured's legal liability for death/disability of
third party loss or damage to third party property.

Salient Features of Third Party Insurance

Ø Third party insurance is compulsory for all motor vehicles. In G. Govindan v.

New India Assurance Co. Ltd.[2],Third party risks insurance is mandatory under
the statute .This provision cannot be overridden by any clause in the insurance
policy.

Ø Third party insurance does not cover injuries to the insured himself but to the
rest of the world who is injured by the insured.

Ø Beneficiary of third party insurance is the injured third party, the insured or the
policy holder is only nominally the beneficiary of the policy. In practice the money
is always paid direct by the insurance company to the third party (or his solicitor)
and does not even pass through the hands of the insured person.

Ø In third party policies the premiums do not vary with the value of what is being
insured because what is insured is the legal liability' and it is not possible to know
in advance what that liability will be.
Ø Third party insurance is almost entirely fault-based.(means you have to prove
the fault of the insured first and also that injury occurred from the fault of the
insured to claim damages from him)

Ø Third party insurance involves lawyers aid

Ø The third party insurance is unpopular with insurance companies as compared

to first party insurance, because they never know the maximum amounts they
will have to pay under third party policies.

Motor Vehicles Acts,1939 and 1988

Motor Vehicles Act,1939 (4 of 1939) consolidates and amends the law relating to
motor vehicles. This has been amended several times to keep it up to date.The
need was, however felt that this Act should, now interalia take into account also
changes in the road transport technology, pattern of passenger and freight
movements, development of the road network in the country and particularly the
improved techniques in the motor vehicles management.

The Motor Vehicles Act,1988 which came into force on 1st July,1988 and which is
divided into XIV Chapters, 217 Sections and two schedules, makes it compulsory
for every motor vehicle to be insured. Chapters X,XI and XII of the 1988 Act deals
with compensation provisions. Sections 140 to 144 (Ch.X) deal with liability with
out fault in certain cases. Chapter XI (Ss. 145 to 164) deal with insurance of motor
vehicles against third party risks.

Legal provisions

The Motor Vehicle Act of 1988 regulates motor insurance and any third-party
liabilities and rights that arise from it. However, Part XI of the Act deals
specifically with third party rights. Section 32D of the Insurance Act of 1938 also
creates an obligation on part of the insurer to provide for insurances dealing with
third party risks.

In accordance with the MV Act, there are certain requirements to be followed for
third party insurance plans, which are as follows:
Section 146 of the Act also provides that the driver of the vehicle must always
carry at least a bodily injury liability and coverage for the liability of property
damage. In the case of Govindan V. New India Assurance Co Ltd., the court held
that no clause in an insurance policy can override the third-party insurance policy.
This has been specifically mentioned as the insurance sector for motors has two
types of insurance namely the first party and the third-party insurance.

Section 147(1): An insurer authorized to do so must provide for any damage to a

third party’s vehicle caused by the insured. These policies are required to cover
any accident in accordance with the value of the liability incurred. A certificate is
to be granted in the prescribed format containing particulars as prescribed and
must be handed over to the insured.

Section 157: In accordance with this Section, the certificate of insurance can be
transferred to the new owner of the vehicle if and when the vehicle is transferred
to a new owner. In order to make the required changes with the authority in
question, the transferee is required to apply within 14 days to make the changes
necessary.

Rights of the third party

1.Right to remain unaffected

The right to remain unaffected arises only in three cases. The first situation is
when an award or a judgement has been given against the insured. The second
situation arises when the liability of the insurer is unlawfully restricted. Thirdly
and finally, when there is a settlement between the insured and the insurer.

The MV Act has prescribed that an insurer can pay only up to the sum of liability
assured. If there is any award or judgement which has been passed against the
insured, the third party’s claim will not be ignored. It is not an absolute right and
can be exercised only if the insured has been notified by the Court with regard to
the proceedings.

On granting the insurance certificate, only those clauses shall be valid which do
not hamper the insurer’s liability. Unless the third party is a party to a settlement
for a claim, the settlement will not be valid. Similarly, the death of the insured
party does not put a full stop to the ongoing cause of action against insurers. An
insured has to pay the estimated amount of damages to the third party in case of
any damage for which the insured had not taken sufficient care to safeguard the
damage or loss. Thus, in such circumstances, the third party remains unaffected.

2.Right to receive information

Any person against whom a claim for damages is made, be it insured or

uninsured, must provide any information to the third party as and when
necessary. The insured is required to mention whether or not he has been
ensured with reference to the liability. The third party here also has a right to
know whether he has any vested or transferred rights. He also has the right to
know if there is any contract for insurance that would affect his rights indirectly or
directly.

Transfer of rights of the insured to the third party

When the third party raises a claim against the insured with respect to an event
that has been insured, the insurer undertakes to pay the damages. If the insured
is insolvent, then all the rights that he holds in relation to the insurer will be
transferred and vested to the third party in the same power.

An insurance policy cannot impose a condition changing the same. Once the
rights have been transferred, the insurer will treat the liability for damages in the
same position as he would have been to the insolvent injured. However, there
may be a situation where the liability for damages is more than the value insured.
In such a case, the insured would be liable to pay the balance or the excess value
to the third party.

Liability of insurer towards third parties

In accordance with Section 147(2) of the MV Act, a policy must cover the liability
of the accident irrespective of the amount of liability along with a limit of Rs.
6000. The High Court of Madras has opined that if the liability of the insurer does
not exist, then this bar shall cease to exist as well. It would be considered void.
Motor accidents: hit and run

Any grievous hurt that arises from a hit and run accident must be compensated
for by the insurer. If it is a case of grievous hurt, a fixed amount of Rs.12,500 is to
be paid. In the case of death, a fixed amount of Rs.25,000 is to be paid. However,
if in accordance to any other act, the compensation has been paid to the legal
heirs, then such compensation is to be refunded back to the insurer.

Insurance Companies have been allowed no other defence except the following:

(1) Use of vehicle for hire and reward not permit to ply such vehicle.

(2) For organizing racing and speed testing;

(3) Use of transport vehicle not allowed by permit.

(4) Driver not holding valid driving license or have been disqualified for holding
such license.

(5) Policy taken is void as the same is obtained by non-disclosure of material fact.

Section152. Settlement between insurers and insured persons.

(1) No settlement made by an insurer in respect of any claim which might be

made by a third party in respect of any liability of the nature referred to in clause
(b) of sub-section (1) of section 147 shall be valid unless such third party is a party
to the settlement.

(2) Where a person who is insured under a policy issued for the purposes of this
Chapter has become insolvent, or where, if such insured person is a company, a
winding up order has been made or a resolution for a voluntary winding up has
been passed with respect to the company, no agreement made between the
insurer and the insured person after the liability has been incurred to a third party
and after the commencement of the insolvency or winding up, as the case may
be, nor any waiver, assignment or other disposition made by or payment made to
the insured person after the commencement aforesaid shall be effective to defeat
the rights transferred to the third party under this Chapter, but those rights shall
be the same as if no such agreement, waiver, assignment or disposition or
payment has been made.

Legal defence available to the Insurance Companies towards third party:

The Insurance Company cannot avoid the liability except on the grounds and not
any other ground, which have been provided in Section 149(2). In recent time,
Supreme Court while dealing with the provisions of Motor Vehicle Act has held
that even if the defence has been pleaded and proved by the Insurance Company,
they are not absolve from liability to make payment to the third party but can
receive such amount from the owner insured. The courts one after one have held
that the burden of proving availability of defence is on Insurance Company and
Insurance Company has not only to lead evidence as to breach of condition of
policy or violation of provisions of Section 149(2) but has to prove also that such
act happens with the connivance or knowledge of the owner. If knowledge or
connivance has not been proved, the Insurance Company shall remain liable even
if defence is available.

Driving License:

Earlier not holding a valid driving license was a good defence to the Insurance
Company to avoid liability. It was been held by the Supreme Court that the
Insurance Company is not liable for claim if driver is not holding effective & valid
driving licence. It has also been held that the learner's licence absolves the
insurance Company from liability, but later Supreme Court in order to give
purposeful meaning to the Act have made this defence very difficult.

Nature and Extent of Insurer's Liability (section 147)

According to the provisions of this section the policy of insurance must be issued
by an authorized insurer.It must be as per requirements as specified in subsection
(2).It must insure against liability in respect of death or bodily injury or damage to
property of a third party. Third party includes owner of the goods or his
authorized representative carried in the vehicle and any passenger of a public
service vehicle.
The policy of insurance must cover:

1.Liability under the Workmen's compensation Act,1923 in respect of death or

bodily injury to any such employee

(a) engaged in driving the vehicle, or

(b) the conductor or ticket examiner if it is a public service vehicle ,or

2. any contractual liability.

Section 147 has to be given wider, effective and practical meaning so that it may
benefit various categories of persons entitling them to claim compensation from
the insurer or the insured or both. Insurer's liability commences as soon as the
contract of insurance comes into force. The liability remains in existence during
the operation of the policy. If the existing policy is renewed the risk is covered
from the moment the renewal of the policy comes into force. If the accident
occurs before the renewal comes into existence, the insurer cannot be made
liable. It is the primary duty of the vehicle owner to prove that his vehicle was
insured with a particular company. If he fails to comply with it he will have to pay
the entire amount of compensation in the case. In case where there is a dispute in
respect of the vehicle having been insured by an assurance company, the tribunal
must give its finding in the matter, it is its duty to do so. After a certificate of
insurance is issued it does not lie in the mouth of the insurer to deny his liability.
If the insurer has been a victim of fraud he can recover the amount from the
insured by a separate action against him.

Insurer's liability to Vehicle-owner

A contract of insurance is a personal contract between the insurer and the

insured. It is for the purpose of indemnifying the insured for damage caused due
to accident by the vehicle , to a third party. To make the insurer liable the policy
of insurance must be in the name of the owner of the vehicle.[9]Owner of the
vehicle as defined in Section 2(30) is a person in whose name the motor vehicle
stands registered.
A person in possession of a vehicle under a hire-purchase agreement or an
agreement of lease or hypothecation is also covered by the definition, no matter
he has exercised his option to purchase the vehicle or not.

Section 157(1) makes it clear that when the owner of a vehicle transfers the
ownership of the vehicle , the policy of insurance and the certificate of insurance
shall be deemed to have been transferred in favour of the purchaser of the
vehicle with effect from the date of its transfer.This deemed transfer shall include
transfer of rights and liabilities of the said certificate of insurance and policy of
insurance.

According to subsection (2) the transferee has to apply within 14 days from the
date of transfer to the insurer for effecting necessary changes in the certificate
and in the policy of insurance.

If the certificate of insurance and the policy are not transferred , the insurer could
not be made liable even though the vehicle is transferred. It is to be remembered
that an insurance policy is a personal contract between the parties for
indemnifying the insured in case of an accident covered under the policy. If the
vehicle is transferred by an insured to another person, the insurance policy lapses
upon the transfer. In such a case the benefit of the policy is not available to the
transferee, without an express agreement with the insurance company. When the
insurance policy lapses it would not be available to cover the liability of the
purchaser of the vehicle.

1.Liability in respect of damage to property [S.147(2)]

For damage to property of a third party under 1939 Act the limit of liability is Rs
6000 in all, irrespective of the class of the vehicle. Under 1988 Act the position as
laid down by section 147 (2) in regard to liability is as under:

(i) For death or personal injury to a third party, the liability of the insurer is the
amount of liability incurred, i.e. for the whole amount of liability.

(ii) For damage to property of a third party the liability of the insurer is limited to
Rs. 6000 as was under the 1939 Act.
2.Liability of Insurer beyond the limits mentioned in the Act

Section 147 lays down the limits of liability of the insurer. However there is no bar
for the insurer undertaking a higher liability i.e. liability for a greater amount than
that mentioned in the Act. Thus the insured and the insurer can contract and can
provide for a higher liability.

Q3) what are the road safety and traffic management laws in india?
Law relating to Registration of Vehicle? Law relating to Driving
License? Traffic and Road Safety Issues?
A. Important Traffic Laws in India

Road safety is a State subject. The administration of the Motor Vehicles Act, 1988
is under the transport Department, which is one of the largest revenue earning
departments. The aforesaid Act provides in detail the legislative provisions
regarding licensing of drivers/conductors, registration of motor vehicles, control
of motor vehicles through permits, special provisions relating to state transport
undertakings, traffic regulation, insurance, liability, offences and penalties, etc.
For exercising the legislative provisions of the Act, the Government of India made
the Central Motor Vehicles Rules 1989. Additionally, there are Rules of Road
Regulations, 1989. The aforesaid Transport Department works with two of the
concerned authorities, under Section 68 of the Motor Vehicles Act, 1988. The RTO
with which every individual is interacting , its services are discussed below:

The compliances of these regulations formulated are enforced by the

enforcement agencies including Traffic police. If in any case somebody violates
the rules and regulations related to traffic laws then they are bound to issue
Challans against the offender under penal actions as per Motor Vehicle Act, 1988.
It is important to understand what law says about the compliances required for
driving a vehicle and what are the duties of owner of vehicle.

a)Law relating to Registration of Vehicle

1.Mandatory Registration: Under section 39 of the Motor Vehicle Act, 1988 it

prohibits driving of any motor vehicle or any vehicle, which is not registered or no
owner of vehicle should permit driving of an unregistered vehicle in public place
which is not registered under the provision of the MV Act. Exception to this
provision is cars with the dealers.

2.Jurisdiction for Application: Registration of the vehicle is done by the

concerned authority is done on the basis of your residence or place of residence
or place of business, where the vehicle is normally kept.

3.Application for Jointly owned Vehicle: In case of joint ownership, the

registration of vehicle can be applied by one of the owners. If a vehicle registered
in one state is kept in another state for more than a period of 12 months, then
owner of such vehicle has to approach the registration authority for assignment
of new registration mark within whose jurisdiction the vehicle is.

4.Change of Address: If there is change of address, then also, the owner of

vehicle is required to approach the authority within 30 days in whose jurisdiction
he has shifted for recording the change of address.

b)Law relating to Driving License

1.Effective Driving License: Any person not otherwise disqualified to hold a

driving license may apply for it. As per the Section 3 of the Central Motor Vehicle
Act, 1988 says nobody can drive at any public place until he holds an effective
driving license issued to him authorizing him to drive the vehicle. Exception to
drive a transport vehicle such a motor cab or motor vehicle hired by him for his
own use or rented under a scheme.

2.Age Limit for obtaining the driving license: No person who is below the age of
18 years shall drive a motor vehicle in a public place. But a motor vehicle of
engine capacity not exceeding 50cc can be driven under the age of 16 years. No
person under the age of 20 years shall drive a transport vehicle.

3.Learner’s License: The Learner’s license means a license issued by a competent

authority to drive as a learner or a motor vehicle specified under a special class or
description. The validity period of learner’s license is 6 months. Jurisdiction for
issuing learner’s license is on the basis of place you reside or where you work for
gain or on the basis of school or place where he intends to receive driving
instructions.

4.Learner’s license to drive a transport vehicle: It cannot be given unless he

drives a light motor vehicle for one year.

5.Learner’s License to drive a LMV: No person under the age of 18 years shall be
granted a learners license to drive a motor vehicle without gear except in writing
with person having care of person having the desire of learner’s license. Medical
certificate is required with the application form in case of vehicle other than LMV.

6.Test of competence to drive a vehicle: It would be given in the vehicle specified

in application to obtain the driving license.

7.Power to Revoke License: Licensing authority has power to revoke the license
of medically unfit person. Automatic suspension of license by a person who has
caused death or grievous hurt of one or more persons. The person should not
suffer from any disability. The Registering authority has power to cancel the
registration of vehicle that is lost, destroyed or has been permanently rendered
incapable for use. If the engine number or chassis number differ from RC, then
also registering authority can cancel the registration.

Conditions under which Licensing Authority can revoke a License

1.Habitual Criminal

2.Drunkard

3.Addicted to Narcotic Drugs and Psychotropic substances

4.Has used or is using a motor vehicle in commissioning of offence

5.Any fraud or misrepresentation in obtaining the DL

6.Driving to cause danger to public on the basis of previous conduct

7.A person under the age of 18 years who has been granted the learner’s license
is at present not under the care of such guardian.
8.Duty to Produce License and Certificate of Registration: The driver of any motor
vehicle is duty bound to produce it for examination it for authorities in uniform.
The person is also duty bound to stop the vehicle if the vehicle is involved in
accident.

9.Responsibility of Owner of Vehicle: Section 5 of the Motor Vehicle Act, 1988 it

clearly says that the owner of the vehicle has a responsibility to not allow driving
a vehicle who does not satisfy above conditions.

B. Traffic and Road Safety Issues

Footpaths not safe for pedestrians: The roads are the most important public
spaces in cities and pedestrians are its largest users, but less than 30% of urban
roads in India have footpaths. Grave concern can be observed regarding safety of
pedestrian to see the footpaths being used by two wheelers, zebra crossing usage
culture is missing and crossing any road is uphill task. Despite the laws in place,
urban areas can clearly seen encroachment of footpaths by bikes with no action
taken. The International Federation of Pedestrians has been explicitly advocating
the right to walk in public spaces as a basic human right but yet the picture of
same to be implemented in full is yet to be achieved. There is a need to build
more roads, make them safer for use of pedestrians throughout India. Since the
law is in place, effective enforcement is required.

Road Rage: Road rage is an expression of human behavior with criminal

consequences. There is no clear law defining road rage in India. Literally, Road
Rage is a term used to refer to the violent incidents caused by stress while driving
on high traffic zones on roadways casing death, attempt to cause death or injury.
Most of the incidents of road rage occur during peak traffic hours. Prime reasons
associated with the incidents of road rage are: Traffic congestion, Noise levels,
time constraints, alcohol consumption. Road rage is considered as a criminal
offence, which may lead to serious injuries and even death. While there are no
clear laws specifying road rage in India, it high time for the government to define
and enforce strictly so that people do not take law into their own hands as the
same has become a real menace and cause of concern about safety of an
individual on road.
Drunken Driving: Impairment by alcohol is an important factor in causing
accidents and it has been found as per study reflected on different websites that
alcohol was present in between 33% and 69% of fatally injured drivers, and in
between 8% and 29% of drivers involved in crashes who were not fatally injured.
A study on drivers killed in road crashes has revealed that teenage drivers have
more than 5 times the risk of a crash compared with drivers aged 30 and above,
at all level of BAC. Drivers 22 to 29 years old were estimated to have 3 times the
risk compared with drivers aged 30 years and above, at all BAC levels. Alcohol
consumption by drivers puts pedestrians and riders of motorized two wheelers at
risk.

4. Ban on Use of Dark, Black and Reflective Glasses: Use of dark, black or
reflective glasses in vehicles is not permitted as per law. As per the orders of the
Hon’ble Supreme Court of India, use of black film or any other material is not
permitted on the windscreen and side windows of vehicles. Violation is
punishable with challan and on-the-spot removal of film. Only company fitted
tinted glasses permitted, with 70% visual transmission of light with windscreen &
rear window and 50% visual transmission of light for side windows. In Avishekha
Goenka vs. Union of India[5] the Hon’ble Supreme Court had banned the use of
black films for any VLT percentage or any material upon the safety glasses, wind
screens front or rear or side glasses of all vehicles through out the country. This
directions are enforceable from May 4, 2012.

5.Missing Speed Breaker: Speed breakers are traffic-calming devices constructed

in accident-prone areas. Driving at high speed in locality is not uncommon and the
common road safety violators. In Delhi, if a stretch of road becomes accident
prone for some reason and the local residents want to get a speed breaker
constructed, an application may be sent to DCP/Traffic (HQ), New Delhi. On
receipt of the application, it is analyzed from traffic point of view and
recommendation is sent to Speed Breaker Committee, which decides the
construction or removal of any speed breaker. This committee consists of
representatives of MCD, NDMC, PWD, CRRI, Traffic Police and concerned
residents welfare association.
6. Under age driving: Of recently, the driving by under age people is not
uncommon on Indian roads. The biggest problem is that parents are encouraging
underage driver when law clearly does not permit. Even parents who sit behind
the driver’s seat when minor is driving, is also wrong under prevailing law. Often
when the accident occurs, the culpability of the parents is booked for failing to
meet moral and legal responsibility. Schools can play active role in educating
students and parents with menace of minor driving.

Motor Vehicle Act, 1988

The Motor Vehicle Act is a law relating to torts that is founded on the concept
that every injury has a remedy. At this point, the idea of compensating and giving
damages comes into action. The Motor Vehicle Act of 1988 has been regarded as
a welfare law aiming at offering relief to those who have been harmed. There
existed the Motor Vehicle Act of 1939, which combined all motor vehicle
legislations, but it had to be regularly amended in order to be updated. With
advancements in road transport technology and road network growth, as well as
changes in passenger transport patterns, it was necessary that the Act was
revised to cover all new methods relevant to motor vehicles.

This Motor Vehicle Act is mainly concerned with granting relief to innocent people
on the road who are frequent victims of accidents and then find themselves
without a claim to the compensation that they should normally receive. All
vehicle drivers must have a driving licence under this Act. This also requires the
registration of a vehicle under the Act, which has a 15-year validity duration and
can be renewed for another 5-year period. The Motor Vehicle Act of 1988
includes not just licencing and registration, but also other aspects of road
transport vehicles.

Motor insurance is required to have at least third-party insurance in order to

register and drive a car on Indian roads. However, the New Motor Vehicle Act Of
2019 proposes a Rs.2000/- fine, 3 months in jail, and community service for
driving without insurance, as well as Rs.4,000/- punishment for repeated
offences. Car and bike insurance policies are offered on the Bajaj markets portal
and online platforms such as PhonePe, Acko, and others, and they provide
customizable policy formats, coverage limits, and outstanding customer care.

Objectives of the Motor Vehicle Act, 1988

The Indian Motor Vehicle Act of 1988 was established to solve the following
issues:

Sticking to strict procedures for granting licences and calculating the validity
period of such licences.

To maintain road safety requirements, dangerous and explosive material

transportation rules, and pollution control measures.

To maintain the country’s rapidly growing quantity of personal and commercial

cars.

To raise the amount of compensation available to hit-and-run cases.

To eliminate the time limit for traffic accident victims to file a compensation
claim.

Offences covered under the Motor Vehicle Act

The following are the offences covered under the original Motor Vehicle Act that
includes:

Driving without a licence,

Allowing someone without a licence to operate a vehicle owned by the vehicle

owner,

Failing to possess all of the relevant documentation required to operate a motor

vehicle on Indian roads,

Driving without a permit if required,

Driving without a vehicle fitness report, driving without a registration certificate

or R.C,
Operation of a vehicle by a minor,

Allowing an unauthorised individual to operate a vehicle,

Riding certain motor vehicles without a helmet,

Driving without fastening the driver’s seat belt,

Exceeding the speed limit and rash driving,

Risky driving,

Driving against the flow of traffic in a one-way lane, and other violations are
considered offences under the Act.

Unit4

Q1) note on Consumer protection act 2019? What are consumer rights under
Consumer Protection Act, 2019? Consumer Protection Authority?what is
Product liability?

Consumer protection is the practice of safeguarding buyers of goods and services

against unfair practices in the market. It refers to the steps adopted for the
protection of consumers from corrupt and unscrupulous malpractices by the
sellers, manufacturers, service providers, etc. and to provide remedies in case
their rights as a consumer have been violated.

In India, the protection of the rights of the consumers is administered by the

Consumer Protection Act, 2019. The Consumer Protection Act, 2019 was
introduced to replace the Consumer Protection Act, 1986. The new Act contains
various provisions which incorporate the challenges faced by modern and
technology-dependent consumers. The Act also contains various provisions for
the protection and promoting the rights of the consumers.

Meaning of the word ‘consumer’

A consumer is an individual or group of individuals who purchase goods and
services for their own personal use and not for the purpose of manufacturing or
resale. Section 2(7) of the Consumer Protection Act, 2019 defines a consumer as
any person who buys goods or services in exchange for consideration and utilises
such goods and services for personal use and for the purpose of resale or
commercial use. In the explanation of the definition of consumer, it has been
distinctly stated that the term ‘buys any goods’ and ‘hires or avails any services’
also includes all online transactions conducted through electronic means or direct
selling or teleshopping or multi-level marketing.

Need for the Consumer Protection Act, 2019

The Consumer Protection Act, 2019 was enacted by the Indian legislature to deal
with matters relating to violation of consumer’s rights, unfair trade practices,
misleading advertisements, and all those circumstances which are prejudicial to
the consumer’s rights. The intention of the Parliament behind enacting the Act
was to include provisions for e-consumers due to the development of technology,
buying and selling of goods and services online have considerably increased
during the last few years.

The Act seeks to provide better protection of the rights and interests of the
consumers by establishing Consumer Protection Councils to settle disputes in case
any dispute arises and to provide adequate compensation to the consumers in
case their rights have been infringed. It further provides speedy and effective
disposal of consumer complaints through alternate dispute resolution
mechanisms. The Act also promotes consumer education in order to educate the
consumer about their rights, responsibilities and also redressing their grievances.

Objective of the Consumer Protection Act, 2019

The main objective of the Act is to protect the interests of the consumers and to
establish a stable and strong mechanism for the settlement of consumer disputes.
The Act aims to:

Protect against the marketing of products that are hazardous to life and property.
Inform about the quality, potency, quantity, standard, purity, and price of goods
to safeguard the consumers against unfair trade practices.

Establish Consumer Protection Councils for protecting the rights and interests of
the consumers.

Assure, wherever possible, access to an authority of goods at competitive prices.

Seek redressal against unfair trade practices or unscrupulous exploitation of

consumers.

Protect the consumers by appointing authorities for timely and sufficient

administration and settlement of consumers’ disputes.

Lay down the penalties for offences committed under the Act.

Hear and ensure that consumers’ welfare will receive due consideration at
appropriate forums in case any problem or dispute arises.

Provide consumer education, so that the consumers are able to be aware of their
rights.

Provide speedy and effective disposal of consumer complaints through alternate

dispute resolution mechanisms.

What are consumer rights under Consumer Protection Act, 2019

There exist six rights of a consumer under the Consumer Protection Act, 2019.
The rights of the consumers are mentioned under Section 2(9) of the Act, which
are as follows:

The right of a consumer to be protected from the marketing of goods and services
that are hazardous and detrimental to life and property.

The right of a consumer to be protected against unfair trade practices by being

aware of the quality, quantity, potency, purity, standard and price of goods,
products or services.
The right of a consumer to have access to a variety of goods, services and
products at competitive prices.

The right to seek redressal at respective forums against unfair and restrictive
trade practices.

The right to receive adequate compensation or consideration from respective

consumer forums in case they have been wronged by the seller.

The right to receive consumer education.

Essential provisions of Consumer Protection Act, 2019

The essential provisions of the Consumer Protection Act, 2019 are:

Consumer Protection Councils/consumer protection authorities

The Act establishes consumer protection councils to protect the rights of the
consumers at both the national and state levels.

a.Central Consumer Protection Council

Under Chapter 2 Section 3 of the Consumer Protection Act, 2019 the Central
Government shall establish the Central Consumer Protection Council which is
known as the Central Council. It is an advisory body and the Central Council must
consist of the following members;

The Minister-in-charge of the Department of Consumer Affairs in the Central

Government will be appointed as the chairperson of the council, and

Any number of official or non-official members representing necessary interests

under the Act.

The Central Council may meet as and when necessary, however, they must hold
at least one meeting every year. The purpose of the Central Council is to protect
and promote the interests of the consumers under the Act.

b.State Consumer Protection Councils

Every state government shall establish a State Consumer Protection Council
known as the State Council having jurisdiction over that particular state. The State
Council acts as an advisory body. The members of the State Council are:

The Minister-in-charge of the Consumer Affairs in the State Government will be

appointed as the chairperson of the council,

Any number of official or non-official members representing necessary interests

under the Act, and

The Central Government may also appoint not less than ten members for the
purposes of this Act.

The State Councils must hold at least two meetings every year.

c.District Consumer Protection Council

Under Section 8 of the Act, the state government shall establish a District
Consumer Protection Council for every district known as the District Council. The
members of the District Council are:

The collector of that district will be appointed as the Chairperson of the District
Council, and

Any other members representing necessary interests under the Act.

Central Consumer Protection Authority

The Central Government shall establish a Central Consumer Protection Authority

which is known as the Central Authority under Section 10 of the Consumer
Protection Act, 2019, 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. The Central Government will
appoint the Chief Commissioner and the other Commissioners of the Central
Authority as required under the Act.
The Central Authority must have an ‘Investigative Wing’ under Section 15 of the
Act to conduct an inquiry or investigation. The investigative wing must comprise
of the Director-General and the required number of Additional Director-General,
Director, Joint Director, Deputy Director and Assistant Director possessing the
required experience and qualifications to carry out the functions under this Act.

Functions and duties of the Central Authority

The functions and responsibilities of the Central Authority are laid down in
Section 18 of the Act which includes;

 To protect and promote the rights of the consumers as a class and to prevent
violation of consumer rights,
 To prevent unfair trade practices,
 To ensure no false or misleading advertisements regarding any goods or
services are promoted,
 To ensure no person takes part in false or misleading advertisements,
 Inquire or investigate in cases of violation of consumer rights or unfair trade
practices.
 File complaints before the National, State or District Commission as the case
may be,
 To review matters relating to the factors hindering the enjoyment of consumer
rights.
 To recommend the adoption of international covenants and best international
practices concerning consumer rights
 Promote research and awareness of consumer rights.
 Lay down necessary guidelines to prevent unfair trade practices and protect
the interests of the consumers.
 Furthermore, the Central Authority also has the power to investigate after
receiving any complaint or directions from the Central Government or of its
own motion in cases where there is an infringement of consumer rights or
unfair trade practices are carried out. And if the Central Authority is satisfied
that infringement of consumer rights or unfair trade practices has occurred
then it may:
 Recall the goods or services which are hazardous and detrimental to the
consumers,
 Reimburse the prices of the goods and services to the consumers, and
 Discontinue the practices that are prejudicial and harmful to the consumers.
 Under Section 21 of the Act, the Central Authority is authorised to issue
directions to false and misleading advertisements which may extend to ten
lakh rupees. While determining the penalty of the offence the Central
Authority must keep in mind factors such as; the population affected by the
offence, frequency of the offence and gross revenue from the sales of such
product. The Central Authority can also direct search and seizure for the
purposes of this Act and in that case the provisions of the Criminal Procedure
Code, 1973 will apply.

Consumer disputes redressal commission

The state government shall establish a District Consumer Disputes Redressal

Commission, known as the District Commission in each district of the state under
the Consumer Protection Act, 2019. The District Commission shall comprise of a
President and not less than two members prescribed by the Central Government.

Section 34 of the Act authorises the District Commission to entertain complaints

where the value of the goods or services paid as consideration does not exceed
one crore rupees. The complaint relating to goods and services can be filed to the
District Commission by the consumer, recognized consumer association, Central
Government, Central Authority, State Government, etc.

Section 36 states that all the proceedings before the District Commission shall be
conducted by the President and at least one member of the commission.

Product liability

Under Section 83 of the Act, a product liability action may be brought by a

complainant against a product manufacturer, product service provider or product
seller.
a.Liability of product manufacturer

A product manufacturer will be held liable in a product liability action under the
following circumstances:

The product contains manufacturing defects.

The product is defective.

There is a deviation from manufacturing specifications.

The product does not conform to the express warranty.

The product fails to contain adequate information for proper usage.

b.Liability of product service provider

A product service provider will be held liable in a product liability action under the
following circumstances:

The service provider will be responsible when the service provided by them is
faulty or imperfect.

There was an act of negligence on their part.

The service provider failed to issue adequate instructions and warnings for the
services.

The service provider failed to conform to the express warranty or terms and
conditions of the contract.

c.Liability of product seller

A product seller will be held liable in a product liability action under the following
circumstances:

They altered or modified the product which resulted in being detrimental to the
consumer.
They failed to exercise reasonable care in assembling, inspecting or maintaining
such product

They exercised substantial control over the product which resulted in causing
harm to the consumer.

Exceptions to product liability

There are certain exceptions to product liability action mentioned in Section 87 of

the Act, such as;

The product was altered, modified or misused by the consumer,

A consumer cannot bring product liability action when the manufacturer has
given adequate warnings and instructions for the use of the product,

The manufacturer would not be liable in case of a product liability action for not
warning about any danger that is commonly known to the general public.

Offences and penalties under Consumer Protection Act, 2019

The offences and penalties listed under this Act are mentioned as follows.

1.Punishment for false and misleading advertisements: Under Section 89 of the

Act any manufacturer or service provider who promotes false or misleading
advertisements will be punished with imprisonment for a term that may extend
to two years and with fine that may extend to ten lakh rupees.

2.Punishment for manufacturing, selling, distributing products containing

adulterants: Under Section 90 of the Consumer Protection Act, 2019 any person
who sells, manufactures, distributes products containing adulterants shall be
penalised in case of the following circumstances;

If the adulterated product does not cause any injury to the consumer then the
term for imprisonment will extend to a period of six months and fine which may
extend to one lakh rupees,
If the product containing adulterant causes injury not amounting to grievous hurt
then the term for imprisonment will extend to a period of one year and fine which
may extend to three lakh rupees,

If the product containing adulterant causes injury amounting to grievous hurt

then the term for imprisonment will extend to a period of seven years and fine
which may extend to five lakh rupees,

If the product results in causing death to the consumer then the term for
imprisonment will be for a period of seven years which may extend to life
imprisonment and fine not less than ten lakh rupees.

3.Punishment for manufacturing, selling, and distributing spurious products:

Section 91 states that any person who sells, manufactures, or distributes spurious
products shall be punished for such acts.

Q2)What is the deficiency of services under the Consumer Protection Act, 2019?

In today’s era, services hired or availed of by the consumers have assumed the
most important place for the people globally. The Act applies to all goods and
services as expressly provided in any service sector where there is a buyer-seller
relationship, such as the hospitality, entertainment, maintenance, railways,
banks, electricity, construction, legal aid, telex, courier, insurance, education,
transportation, aviation, hospitality etc. Deficiency of service can have minor to
grave consequences, ranging from negligence, inconvenience or harassment to
mental or physical injury to death, thereby leading to legal consequences. The
services for consideration offered whether by a private person, firms, companies
or by the government or the corporate bodies, act as the factor for growth and
development of the country and any deficiency in these services would lead to
action under the Act. The sole purpose of the Consumer Protection Act, 2019, is
to protect and safeguard the interests of consumers. It not only covers within its
ambit physical platforms for a buyer-seller relationship but also recognizes
services provided by e-commerce platforms.

section 2 (11) of Consumer Protection Act, 2019 defines Deficiency of Service 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 (a)
any act of negligence or omission or commission by such person to the consumer
and (b) deliberate withholding of relevant information by such person to the
consumer.”

Examples of deficiency of services:

Inappropriate treatment done by a doctor leading to an increase in patient’s

suffering is the deficiency in service.

A customer buys a ticket for an AC bus. But the AC of the bus does not work,
which is a deficiency of service.

Analysis of deficiency of services under the Act

The Act imposes strict liability on the manufacturer, distributors, suppliers and
retailers for causing injurious harm by its defective products or services.
Notwithstanding any contractual obligations and limitations of the liability, if a
product or any of its components fails to comply with the necessary standards
and therefore causing a defect in the product, shall make the manufacturer of the
product directly liable for damages under the Act or the common law of
negligence. Subsequently, the action can be brought for injury, death or any
damages caused to a person or property under the Act due to a defect of the
product. This means that there is no need for consumers to prove that the
manufacturer was negligent for filing the suit against the manufacturer. The
consumer only needs to prove that the defect in the product, the damage or
injury was caused to the consumer by the product or service only.

Q3) What are Unfair Trade Practices? Or ) What are UNFAIR ADVERTISING and
misleading information?

UNFAIR TRADE PRACTICES

The phrase unfair trade practices can be defined as any business practice or act
that is deceptive, fraudulent, or causes injury to a consumer. These practices can
include acts that are deemed unlawful, such as those that violate a consumer
protection law. Some examples of unfair trade methods are: the false
representation of a good or service; false free gift or prize offers; non-compliance
with manufacturing standards; false advertising; or deceptive pricing.

UNFAIR ADVERTISING

A simple definition of unfair advertising is false advertising that misrepresents a

product, service, or price. A broader description of the term will include unfair
sales strategies, such as “bait and switch,” a practice of advertising one item at a
low price with the intent of actually selling other items. Unfair ads can be
categorized as those with incorrect pricing, fake endorsements, false statements,
or exaggerated performance descriptions. Deceptive guarantees are also
considered a form of unfair advertising.

As per Section 2(28) of the New Act, “misleading advertisement” in relation to

any product or service, means an advertisement, which—

(i)falsely describes such product or service; or

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

(iii) conveys an express or implied representation which, if made by the

manufacturer or seller or service provider thereof, would constitute an unfair
trade practice; or

(iv) deliberately conceals important information;

As per Section 15(1) of the New Act, the Central Authority shall have an
Investigation Wing headed by a Director General for the purpose of conducting
inquiry or investigation under this Act as may be directed by the Central
Authority. Under the New Act, a consumer can file a complaint with the Central
Consumer Protection Authority against any advertisement which gives or conveys
false description of a product or service or contains a representation constituting
an unfair trade practice etc.
 Pursuant to Section 17 of the New Act, a complaint relating to violation of
consumer rights or unfair trade practices or false or misleading advertisements
which are prejudicial to the interests of consumers as a class, may be forwarded
either in writing or in electronic mode, to any one of the authorities, namely, the
District Collector or the Commissioner of regional office or the Central Authority.
The District Collector (by whatever name called) may, on a complaint or on a
reference made to him by the Central Authority or the Commissioner of a regional
office, inquire into or investigate complaints regarding violation of rights of
consumers as a class, on matters relating to violations of consumer rights, unfair
trade practices and false or misleading advertisements, within his jurisdiction and
submit his report to the Central Authority or to the Commissioner of a regional
office, as the case may be.[Section 16 of the New Act].

Section 21 of the New Act deals with the Power of Central Authority to issue
directions and penalties against false or misleading advertisements.

The relevant provisions of the said section are given the table below:

(1) Where the Central Authority is satisfied after investigation that any
advertisement is false or misleading and is prejudicial to the interest of any
consumer or is in contravention of consumer rights, it may, by order, issue
directions to the concerned trader or manufacturer or endorser or advertiser or
publisher, as the case may be, to discontinue such advertisement or to modify the
same in such manner and within such time as may be specified in that orde.

(2) Notwithstanding the order passed under sub-section (1), if the Central
Authority is of the opinion that it is necessary to impose a penalty in respect of
such false or misleading advertisement, by a manufacturer or an endorser, it may,
by order, impose on manufacturer or endorser a penalty which may extend to ten
lakh rupees: Provided that the Central Authority may, for every subsequent
contravention by a manufacturer or endorser, impose a penalty, which may
extend to fifty lakh rupees.

(3) Notwithstanding any order under sub-sections (1) and (2), where the Central
Authority deems it necessary, it may, by order, prohibit the endorser of a false or
misleading advertisement from making endorsement of any product or service for
a period which may extend to one year. Provided that the Central Authority may,
for every subsequent contravention, prohibit such endorser from making
endorsement in respect of any product or service for a period which may extend
to three years.

(4) Where the Central Authority is satisfied after investigation that any person is
found to publish, or is a party to the publication of, a misleading advertisement, it
may impose on such person a penalty which may extend to ten lakh rupees.

(5) No endorser shall be 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 regarding the product or service being endorsed by him.

(6) No person shall be liable to such penalty if he proves that he had published or
arranged for the publication of such advertisement in the ordinary course of his
business: Provided that no such defence shall be available to such person if he
had previous knowledge of the order passed by the Central Authority for
withdrawal or modification of such advertisement. Appeal against the order of
Central Authority As per Section 24 of the New Act, a person aggrieved by any
order passed by the Central Authority under sections 20 and 21 may file an appeal
to the National Commission within a period of thirty days from the date of receipt
of such order.

Unfair Trade Practices and Examples

1.Product Guarantees and False Endorsements

Companies must be prepared to honor product guarantees. For example, if a

product is advertised with a 50 percent money-back guarantee, then that must
be provided to customers who meet the requirement(s) attached to the
guarantee. Similarly, companies may not create false endorsements and
testimonials about their products.

2.Unfair Advertising
False advertising includes the misrepresentation of a product, service, or price. It
may be more expansively defined to include unfair sales strategies, such as
advertising one item and then selling another item in its place, e.g., one that is
higher priced, lower quality and/or less in demand. This method is most
commonly referred to as “bait and switch.” Additional examples of unfair
advertising include incorrect pricing, fake endorsements, deceptive guarantees,
making false statements, and providing descriptions that exaggerate the
performance of the product or service.

3.Taking Advantage of Customers

The FTC also pays particular attention to business ventures that target vulnerable
populations. For example, some telemarketing efforts employ intense pressuring
tactics to target seniors and people who don’t speak English.

4.Misrepresenting a Product

At times, the FTC may be quite technical in its definition of certain terms. For this
reason, companies should be very clear about their usage of various phrases and
words. For example, the word “new” may only be used to refer to a product that
is less than six months old. Other terms may be the subject of debate or litigation,
such as whether a lotion will actually “rejuvenate” skin or whether a tablet will
actually “cure” baldness. Indeed, a sweater should not be called “wool” unless
that is its complete composition. There are many examples, so it is important for
businesses to have an understanding of the FTC’s rules on this topic.

5.Giving Misleading Price Information

The FTC sanctions misleading price information as an unfair trade practice.

Examples of misleading price information include false sales in which a “limited
time offer” might actually be available forever, or running a “Going Out of
Business” sale without any plans to go out of business while advertising that items
are discounted, although the prices have not changed.

6.Failing to Disclose Pertinent Information

Merchants must disclose facts that would reasonably influence the consumer’s
decision to make a purchase. Withholding pertinent information from customers
may be viewed by the FTC as equal in severity to the process of using overtly
incorrect or deceptive information. For example, sellers should always disclose
the full price of their products or services before accepting payment for them.

Steps taken by the Department of Consumer Affairs to tackle the menace

of misleading advertisements:-

The Indian Government has set up an Inter-Ministerial Monitoring Committee on

Misleading Advertisements vide OM dated 21.02.2014 having members drawn
from different Ministries and authorities. Advertisement standards Council of
India is also represented in the said Committee.A web portal, which would enable
consumers to lodge online complaints against misleading advertisements, has
been implemented by the Government.Counter Campaign strategies are being
worked out with FSSAI and other authorities like RBI, NPPA, etc.Industry body
has been asked to bring out a document titled Corporate Consumer
responsibility which would contain code of business ethics on unfair trade
practises including misleading advertisements.

How to register an online complaint?

1.An online complaint can be registered through the web portal of the
Department of Consumer Affairs at http://gama.gov.in to bring it to the notice of
the Government along with a copy / video / audio of such advertisement.

2.A onetime registration is required for lodging a complaint on the web portal.
Click on the login link and register yourself.

3.Verify through your email ID or mobile number and create a user ID and
password.

4.Using this user ID and password, enter into the portal and fill in required details
attaching necessary audio / video / paper clip / photograph (if available).
There are a number of existing legislations that have provisions to deal with
misleading claims and advertisements made by companies regarding their
products which include, inter alia,

1.The Drugs and Cosmetics Act, 1940 (Department of Health and Family Welfare)

2.The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1955

(Department of Health and Family Welfare)

3.Food Safety and Standards Act, 2006 (Department of Health and Family Welfare

4.The Cigarettes and other Tobacco Products (Prohibition of Advertisement

and Regulation of Trade and Commerce, Production, Supply and
Distribution) Act, 2003 (Department of Health and Family Welfare).

5.The Bureau of Indian Standards (Certification) Regulations, 1988 as under its

Rule 7 (1) (l), (g) and (h) prohibits misleading advertisements pertaining to BIS
certification.

6.Over and above, the Advertisements aired on private satellite TV channels

are regulated under the Advertising Code prescribed in rules framed under
Cable Television Network (Regulation) Acts 1995. The misleading
Advertisements in print media, which are violative of ‘Norms of Journalistic
Conducts” are being adjudicated by the Press council of India under Section
14 of the Press council Act 1978. The Food Safety and Standards Authority also
provides for penal action against misleading advertisement pertaining to food
products.

Legal Remedies for Misleading Advertising:

Injunctive Relief: Injunctive relief is granted by the courts upon the satisfaction of
two requirements. First, a plaintiff must demonstrate a "likelihood of deception
or confusion on the part of the buying public caused by a product's false or
misleading description or advertising" (Alpo). Second, a plaintiff must
demonstrate that an "irreparable harm" has been inflicted, even if such harm is a
decrease in sales that cannot be completely attributed to a defendant's false
advertising.Corrective Advertising Corrective advertising can be ruled in two
different ways. First, and most commonly, the court can require a defendant to
launch a corrective advertising campaign and to make an affirmative, correcting
statement in that campaign. Second, the courts can award a plaintiff monetary
damages so that the plaintiff can conduct a corrective advertising campaign to
counter the defendant's false advertisements.