Standing  of  a Person in  Tort Law of Torts and Consumer Protection Act
<ul><li>Introduction : </li></ul><ul><li>All persons have capacity to sue and be sued in tort. This, however, is a general...
<ul><li>This rule was based on premise that only a person whose own right is threatened, is entitled to seek a remedy, thi...
<ul><li>Traditionally it was only a person who has suffered a specific legal injury by a reason of actual or threatened vi...
<ul><li>The Liberalisation of Locus Standi in Public Interest Litigation :  </li></ul><ul><li>Justice Krishna Iyer in  Mun...
<ul><li>A Committee consisting of PN Bhagwati and VR Krishna Iyer JJ submited  the Report on National Juridicare, Ministry...
<ul><li>1 .  Private Legal Injury to Others </li></ul><ul><li>Where a person who has suffered legal wrong or legal injury ...
<ul><li>2 .  Injury to Public Interest: </li></ul><ul><li>Where the state or a public authority may act in violation of co...
<ul><li>3 .  Injury to Public Interest with Specific Injury :  Qualified Standing </li></ul><ul><li>Where there is public ...
<ul><li>Bhopal Gas Leak Disaster and Class Action :   </li></ul><ul><li>A class action is a legal procedure which enables ...
<ul><li>Only the representative plaintiff is a party to the action. The class members are bound by the outcome of the liti...
<ul><li>In  Charan Lal Sahu v. Union of India , (1990) 1 SCC 613, the constitutional vaidity of  the Bhopal Gas Leak Disas...
<ul><li>The Court held that the Act is valid as the State in capacity of  parents patriae  (parent of the country) for pro...
<ul><li>Following persons may not sue due to restriction on personality, partially or fully.  </li></ul><ul><li>Foreign St...
<ul><li>Foreign State:   </li></ul><ul><li>A foreign state cannot sue in any Court of India unless such State has been rec...
<ul><li>As per  Section 84, CPC  a foreign state may sue in any competent court: provided that the object of the suit is t...
<ul><li>Private Rights :  </li></ul><ul><li>The private rights spoken of in this section  does not mean individual rights ...
<ul><li>Mirza Ali Akbar v. United Arab Republic , AIR 1966 SC 230,  </li></ul><ul><li>It was held by the Supreme Court tha...
<ul><li>Alien Enemy   : </li></ul><ul><li>Alien enemy is a person of enemy nationality or a person residing in or carrying...
<ul><li>As per  Section 83, Civil Procedure Code, 1908 , alien enemies residing in India with the permission of the Centra...
<ul><li>Convict : </li></ul><ul><li>A convict can under English Law sue for wrongs to his person and property like any oth...
<ul><li>Under English Law, a convicted person, in spite of his imprisonment, retains all civil rights which are not taken ...
<ul><li>Insolvent   : </li></ul><ul><li>Insolvent person may be defined as  “ one who is unable to satisfy creditors or di...
<ul><li>In case of torts committed against an insolvent person, a distinction is to be drawn between torts to the person a...
<ul><li>But where a tort causes  injury both to the person and property  of the insolvent ,  the right of action will be s...
<ul><li>Husband and Wife : </li></ul><ul><li>England </li></ul><ul><li>Prior to 1882, a married woman could not sue for an...
<ul><li>These anomalies have been removed by the  Married Women ’ s ’  Property Act, 1882  and the  Law Reform (Married Wo...
<ul><li>India </li></ul><ul><li>Marital status of Hindus, Buddhists, Sikhs, Jains and Muslims in India is governed by thei...
<ul><li>Corporation : </li></ul><ul><li>A corporation is not a real person but only a juristic or fictitious person and ca...
<ul><li>Mayor of Manchester v. Williams , (1891) 1 QB 94 </li></ul><ul><li>The plaintiff corporation suit for damages fail...
<ul><li>However, a corporation can sue for defamation, when it affects it business and properly even though the charge may...
<ul><li>South Hilton Coal Co., v. North Eastern News Association,  (1894) 1 QB 133 </li></ul><ul><li>The plaintiff Company...
<ul><li>Who cannot be sued?   </li></ul><ul><li>There are  nine classes  of persons who cannot be sued in tort. They are: ...
<ul><li>Foreign Sovereigns   </li></ul><ul><li>English Law </li></ul><ul><li>Unless a foreign sovereign submits to the jur...
<ul><li>Mighell v. Sultan of Johore, (1894) 1 QB 149 </li></ul><ul><li>Duff Development Co. v Keltan Government, (1924) AC...
<ul><li>Indian Law   </li></ul><ul><li>The heads of all countries are exempt from the jurisdiction of the Indian Courts. <...
<ul><li>United States law prohibits most civil lawsuits by an individual against a foreign state under  the Foreign Sovere...
<ul><li>Ambassadors/Diplomatic Agents   </li></ul><ul><li>The protection of unhampered and free exercise of the diplomatic...
<ul><li>Ambassadors cannot be sued for torts either in the Courts of England or in the Courts of India on principles of in...
<ul><li>To give effect to  the Vienna Convention of Diplomatic Relations, 1961 ,  India formulated  the Diplomatic Immunit...
<ul><li>Minor (Infant)   </li></ul><ul><li>As per  sections 10 and 11 of the Indian Contract Act, 1872  a minor is incompe...
<ul><li>The law of torts does not make any distinction on the basis of age. Thus a child of seven years could be sued for ...
<ul><li>Walmsley v. Humenick , (1954) 3 D.L.R. 232 </li></ul><ul><li>The Supreme Court of British Columbia held that the d...
<ul><li>Sometimes, the same act on the part of a minor may result in such wrongs – a tort and the breach of contract. The ...
<ul><li>Johnson v. Pye , (1665) 1 Sid 258 </li></ul><ul><li>A minor obtained a loan of pounds 300 falsely representing his...
<ul><li>  Liability of parents for children ’ s torts  </li></ul><ul><li>As a general rule, a parent or a guardian cannot ...
<ul><li>Bebee v. Sales , (1916) 32 T.L.R. 413 </li></ul><ul><li>The father supplied an airgun to his son, aged 15 years. E...
<ul><li>Lunatics   </li></ul><ul><li>As per  section 84 of the Indian Penal code , Insanity is a good defence in the Crimi...
<ul><li>Ranagangulu v. Seaswan , AIR 1947 Ker. 25 </li></ul><ul><li>The Kerala High Court held that lunacy cannot be regar...
<ul><li>Prof. Winfield  has quoted three reasons for fixing the liability on the lunatics: </li></ul><ul><li>where one or ...
<ul><li>Corporations   </li></ul><ul><li>Whether Corporation liable for fraud or malice </li></ul><ul><li>At one time it w...
<ul><li>Whether the corporation is liable for the torts of it’s servants? </li></ul><ul><li>A corporation is liable for to...
<ul><li>Can a corporation be sued for  ‘ Ultra-vires ’  torts? </li></ul><ul><li>A corporation will not be liable if the a...
<ul><li>Tiruveriamuthu Pillai v. Municipal Council , AIR 1961 Mad. 230 </li></ul><ul><li>The plaintiff ’ s dog was killed ...
<ul><li>In  Municipal Board of Ahmedabad v. Panubhai ,(1934) 37 Bom. LR 468, held by Rangnekar, J: </li></ul><ul><li>“ A c...
<ul><li>Persons having Parental or Quasi Parental Authority   </li></ul><ul><li>Parents and persons in loco parentis have ...
<ul><li>In England, as per  Section 1(7), Children and Young Persons Act, 1933 , a parent, teacher, or other person having...
<ul><li>R. v. Newport (Salop) Justices , (1929) 2 K.B. 416 </li></ul><ul><li>It has been held that if the school rules pro...
<ul><li>Traditionally it is held that parents have the legal right to smack their children as part of administering of rea...
<ul><li>A v. United Kingdom , (1998) 2 FLR 959 </li></ul><ul><li>A 48 year old scottish teacher who pulled down his eight ...
<ul><li>R (on the application of Williamson) v. Secretary of State for Education & Employment , (2005) UKHL 15 </li></ul><...
<ul><li>Persons having Judicial and Executive Authority   </li></ul><ul><li>Judicial Officers ’  Protection Act, 1850  gra...
<ul><li>Section 1  of the Act reads as follows: </li></ul><ul><li>“ No Judge, Magistrate, Justice of the Peace, Collector ...
<ul><li>Limits of such protection </li></ul><ul><li>1. No such protection is granted if a magistrate is acting mala fide a...
<ul><li>2. The protection of judicial privilege applies only to judicial proceedings as contrasted with administrative or ...
<ul><li>They filed a suit claiming compensation of Rs. 2,000 from the judicial officer and the State of U.P. stating that ...
<ul><li>The Allahabad High Court, on an appeal made by the State of U.P. held that the State was not liable because the ac...
<ul><li>Article 361 of the Constitution of India, the President, Governors and Raj-pramukhs of States and Sardar – i – Riy...
<ul><li>Section 16 of the Dourine Act (V of 1910);  </li></ul><ul><li>Section 56 (1) of the Indian Electricity Act (IX of ...
<ul><li>Section 2 of the Indemnity Act (XXVII of 1919);  </li></ul><ul><li>Section 293 of the Indian Income Tax Act (XLVII...
<ul><li>Trade Unions </li></ul><ul><li>As per  section 13 of the Trade Unions Act, 1926 , every registered Trade Union sha...
<ul><li>All the Best! </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
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Capacity Or Standing

  1. 1. Standing of a Person in Tort Law of Torts and Consumer Protection Act
  2. 2. <ul><li>Introduction : </li></ul><ul><li>All persons have capacity to sue and be sued in tort. This, however, is a general rule and is subject to modification in respect of certain categories of persons. </li></ul><ul><li>Locus Standi : Traditional Doctrine of Locus Standi in Private Law Litigation - </li></ul><ul><li>Locus standi means ‘ legal capacity to challenge an act or decision ’ . This traditional rule of locus standi is that judicial redress is available only to person who has suffered legal injury. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  3. 3. <ul><li>This rule was based on premise that only a person whose own right is threatened, is entitled to seek a remedy, this rule translate itself into the following proposition of law: </li></ul><ul><li>1. Only he can take recourse to the jurisdiction whose own legal rights of person or property are directly and substantially injured. </li></ul><ul><li>2. When a person suffers along with other members of the public by administrative action, he cannot challenge the action in question, unless he can show some special injury to himself over and above what others have suffered. </li></ul><ul><li>3. Where a person challenging an administrative action is a total stranger (courts call them meddlesome interloper ), the court will not ordinarily entertain his petition. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  4. 4. <ul><li>Traditionally it was only a person who has suffered a specific legal injury by a reason of actual or threatened violations of a legal right or legally protected interest who could bring an action for judicial redress. However, this is a rule of ancient vintage and it arose during an era when private law dominated the legal system and public law had not yet been born. </li></ul><ul><li>Where an applicant has a legal right or a legally protected interest the violation of which would result a legal injury to him, there must be corresponding duties owned by other parties to the applicant. </li></ul><ul><li>This rule in regard to locus standi thus postulates the right-duty pattern which is commonly to be found in private law litigation. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  5. 5. <ul><li>The Liberalisation of Locus Standi in Public Interest Litigation : </li></ul><ul><li>Justice Krishna Iyer in Municipal Council Ratlam v Vardhichand AIR 1980 SC 1622, for improving the access to justice for the people, stated with assertion the imperative need to liberalise locus standi to go beyond the blinkered rules of standing of British Indian Vintage . </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  6. 6. <ul><li>A Committee consisting of PN Bhagwati and VR Krishna Iyer JJ submited the Report on National Juridicare, Ministry of Law Justice and Company Affairs, Government of India, 1977 and emphasised this need as follows: </li></ul><ul><li>“ Each one being driven to Court on his separate cause of action is itself a public wrong…The rule of locus standi requires to be broad based and any organisation (or individual) must be able to start such legal action…Community proceedings, public inerest litigation, class action and the like before Courts, Tribunals and other authorities must be financed and/or undertaken by legal aid organisation and public interst lawyers. ” </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  7. 7. <ul><li>1 . Private Legal Injury to Others </li></ul><ul><li>Where a person who has suffered legal wrong or legal injury or whose legal rights or interest is violated has been unable to approach the court on account of some disability (his socially or economically disadvantage position) some other person can invoke the assistance of the court for judicial redress. </li></ul><ul><li>In S P Gupta v. Union of India , AIR 1982 SC 149, it was held that in such a case unless another person is allowed to move the court the legal wrong or the injury caused to such person would go unredressed. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  8. 8. <ul><li>2 . Injury to Public Interest: </li></ul><ul><li>Where the state or a public authority may act in violation of constitutional or statutory obligations or fail to carry out such obligation, resulting in injury to public interest, who would have standing to complain against such act or omisssion of the state or public authority? In such cases, if no one can maintain an action for redress, it would be disastrous for rule of law. </li></ul><ul><li>In S P Gupta v. Union of India , AIR 1982 SC 149, the Suprme Court viewed that in all such cases where there has been the public wrong and the public injury, any member of the public acting bonafide and having sufficient interest can maintain a redress of such public wrong or public injury. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  9. 9. <ul><li>3 . Injury to Public Interest with Specific Injury : Qualified Standing </li></ul><ul><li>Where there is public injury by the act or omission of the state or public authority which also simultaneously causes specific injury to an individual or to a specific class or group of individuals. In such cases a member of the public haing sufficient interest can certainly maintain an action challenging the legality of such an action. </li></ul><ul><li>However, if the person or specific class/group of persons who have primarily injured do not wish to any claim, the member of public who complains of a secondary public injury can not maintain the action. (For more details on public interest litigation, please refer to Videh Upadhyay, “ Public Interest Litigation in India: Concepts, Cases and Concerns ” , LexisNexis Butterworths: 2007 ) </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  10. 10. <ul><li>Bhopal Gas Leak Disaster and Class Action : </li></ul><ul><li>A class action is a legal procedure which enables the claims (or part of the claims) of a number of persosn against the same defendant to be determined in the one suit. </li></ul><ul><li>In a class action, one or more persons may sue on his or her own behalf and on behalf of a number of other persons who have a claim to a remedy for the same or a similar alleged wrong to that alleged by the representative plaintiff, and who have claims that share questions of law or fact in common with those of the representative plaintiff ( ‘ common issues ’ ). </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  11. 11. <ul><li>Only the representative plaintiff is a party to the action. The class members are bound by the outcome of the litigation on the common issues, whether favourable or adverse to the class, although they do not, for the most part, take any active part in that litigation. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  12. 12. <ul><li>In Charan Lal Sahu v. Union of India , (1990) 1 SCC 613, the constitutional vaidity of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 was challenged. </li></ul><ul><li>The Act empowers the Central Government to take over the conduct of all litigation on behalf of the victims of Bhoapl Gas Tragedy. The validity of the Act was challenged on the ground that the deprivation of the claimants individual rights to legal remedy against the Union Carbide Company was violative of Aticle 14 of the Constitution. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  13. 13. <ul><li>The Court held that the Act is valid as the State in capacity of parents patriae (parent of the country) for protecting the disabled victims of Bhopal Gas disaster is competent to represent the victims. </li></ul><ul><li>It is the duty of the State to protect the rights and privileges of its citizens and where the citizens are not in a position to assert and secure their rights the State must come into picture and protect and fight for the rights of the citizens. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  14. 14. <ul><li>Following persons may not sue due to restriction on personality, partially or fully. </li></ul><ul><li>Foreign State </li></ul><ul><li>Alien Enemy </li></ul><ul><li>Convict </li></ul><ul><li>Insolvent </li></ul><ul><li>Husband and Wife </li></ul><ul><li>Corporation </li></ul>Who cannot sue? 06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  15. 15. <ul><li>Foreign State: </li></ul><ul><li>A foreign state cannot sue in any Court of India unless such State has been recognised by the Government of India. </li></ul><ul><li>As per Section 87A (1) (a), CPC “ Foreign State ” means any State outside India which has been recognised by the Central Government. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  16. 16. <ul><li>As per Section 84, CPC a foreign state may sue in any competent court: provided that the object of the suit is to enforce a private right vested in the ruler or such state or in any officer of such State in his public capacity. </li></ul><ul><li>[ As per Section 87A (1) (b) CPC “ Ruler ” , in relation to a foreign State, means the person who is for the time being recognised by the Central Government to be the head of that state. ] </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  17. 17. <ul><li>Private Rights : </li></ul><ul><li>The private rights spoken of in this section does not mean individual rights as opposed to those of the body politic but those private rights of the State which must be enforced in a Court of Justice as distinguished from its political or territorial rights which must, from their very nature, be made the subject or arrangement between on e State and another. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  18. 18. <ul><li>Mirza Ali Akbar v. United Arab Republic , AIR 1966 SC 230, </li></ul><ul><li>It was held by the Supreme Court that ‘ private rights ’ means rights which may be enforced by a foreign state against private individuals as distinguished from rights which one State in its political capacity may have as against another State in it s political capacity. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  19. 19. <ul><li>Alien Enemy : </li></ul><ul><li>Alien enemy is a person of enemy nationality or a person residing in or carrying on business in enemy territory, whatever his nationality. An alien enemy cannot sue in his own right. </li></ul><ul><li>Johnstone v. Pedler , (1921) 2 AC 262 </li></ul><ul><li>It was held that an alien enemy residing within the realm by the express or tacit licence of the Crown is temporarily free from his enemy character and can invoke jurisdiction of courts. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  20. 20. <ul><li>As per Section 83, Civil Procedure Code, 1908 , alien enemies residing in India with the permission of the Central Government and alien friends, may sue in any court otherwise competent to try the suit, as if they were citizens of India, but alien enemies residing in India without such permission, or residing in a foreign country, shall not sue in any such court. </li></ul><ul><li>Further, every person residing in a foreign country, the Government of which is at war with India and carrying on business in that country without a license on that behalf granted by the Central Government is deemed to be an alien enemy residing in a foreign country. ( Explanation to Section 83, CPC. ) </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  21. 21. <ul><li>Convict : </li></ul><ul><li>A convict can under English Law sue for wrongs to his person and property like any other citizen. </li></ul><ul><li>1870-1948 </li></ul><ul><li>Under the Forfeiture Act, 1870 , a convict whose sentence was in force and unexpired, and who was not “ lawfully at large under any license ” could not sue for an injury to his property, or for recovery of a debt. </li></ul><ul><li>This disability was removed by the Criminal Justice Act 1948 . </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  22. 22. <ul><li>Under English Law, a convicted person, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication. </li></ul><ul><li>The Indian Law is the same . </li></ul><ul><li>Sunil Batra v. Delhi Administration , AIR 1978 SC 1675 </li></ul><ul><li>It was held that “ conviction of a person does not draw any iron curtain between him and his rights and he is not reduced to a non-person ” . </li></ul><ul><li>Smt. Kewal Pati v. State of UP , (1995) 3 SCC 600 </li></ul><ul><li>A convict was attacked by another convict in Jail and killed due to failure of Jail authorities to protect him. In a petition under Article 32 of the constitution by the dependents of the deceased they were awarded Rs. 1,00,000 as compensation against the State for violation of the fundamental right of life protected under Article 21. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  23. 23. <ul><li>Insolvent : </li></ul><ul><li>Insolvent person may be defined as “ one who is unable to satisfy creditors or discharge liabilities, either because liabilities exceed assets or because of inability to pay debts as they mature ” . </li></ul><ul><li>An insolvent person may be sued for a tort committed by him either before or during insolvency, and if a decree is obtained against him, the amount awarded is a debt provable in insolvency. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  24. 24. <ul><li>In case of torts committed against an insolvent person, a distinction is to be drawn between torts to the person and torts to property. </li></ul><ul><li>In case of torts committed to property, the right of action in respect of insolvent ’ s property passes to the Official Assignee or Receiver for the benefit of his creditors. </li></ul><ul><li>In case of torts exclusively to the person, reputation or feelings of the insolvent remains with the insolvent. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  25. 25. <ul><li>But where a tort causes injury both to the person and property of the insolvent , the right of action will be split and will pass, so far as it relates to the property, to the Official Assignee or Receiver, and will remain in the insolvent so far as it relates to his person. </li></ul><ul><li>One must understand that in such a case either the cause of action is divided between him and the trustee or they may join together in one action in which case damages will be assessed under two separate heads. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  26. 26. <ul><li>Husband and Wife : </li></ul><ul><li>England </li></ul><ul><li>Prior to 1882, a married woman could not sue for any tort committed by a third person unless her husband joined with her as plaintiff. </li></ul><ul><li>She could also not be sued for a tort committed by her unless her husband was made a defendant. </li></ul><ul><li>Further, she could not sue her husband and the husband could not sue her for any tort committed by one against the other. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  27. 27. <ul><li>These anomalies have been removed by the Married Women ’ s ’ Property Act, 1882 and the Law Reform (Married Women and Tortfeasors) Act, 1935 . </li></ul><ul><li>A married woman can sue for any tort committed by a third person and can also be sued for any tort committed by her without joining her husband who cannot be made liable or made party to a suit simply because he is the husband. </li></ul><ul><li>Finally , by the Law Reform (Husband and Wife) Act, 1962 , each of the parties to a marriage has the same right of action in tort against the other as if they were not married but the court has a discretion to stay the proceedings to prevent them from using it as a forum for trivial domestic disputes without any chance of substantial benefit to either of them. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  28. 28. <ul><li>India </li></ul><ul><li>Marital status of Hindus, Buddhists, Sikhs, Jains and Muslims in India is governed by their personal laws and not by the common law. </li></ul><ul><li>Marriage under these person laws does not affect the capacity of the parties for suing or for being sued nor does it confer any protection to any of the spouses for any tortious act committed by one against the other. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  29. 29. <ul><li>Corporation : </li></ul><ul><li>A corporation is not a real person but only a juristic or fictitious person and cannot, unlike real persons, be brought into hatred, ridicule, or contempt by any manner of falsehood. </li></ul><ul><li>Thus when a libel had been made against a corporation, in the aggregate capacity, it is in fact, the individuals composing it and not the corporation in the aggregate capacity whose reputation has been actually injured. </li></ul><ul><li>Therefore the law is that a corporation cannot sue for defamation affecting personal reputation only. </li></ul><ul><li>Obviously it is individual member who can have a cause of action and allege loss or personal reputation. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  30. 30. <ul><li>Mayor of Manchester v. Williams , (1891) 1 QB 94 </li></ul><ul><li>The plaintiff corporation suit for damages failed in respect of a statement containing charges of corrupt practices in the administration of municipal affairs, for such statement was held not to injuriously affect the reputation of the corporation as such. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  31. 31. <ul><li>However, a corporation can sue for defamation, when it affects it business and properly even though the charge may be levelled against the individual members composing it. </li></ul><ul><li>Two conditions must be fulfilled : </li></ul><ul><li>The statement must be of such nature that it would be defamatory, if directed against the individual; </li></ul><ul><li>It must be of such a nature that it tends to cause actual damage to the corporation in terms of its property or business. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  32. 32. <ul><li>South Hilton Coal Co., v. North Eastern News Association, (1894) 1 QB 133 </li></ul><ul><li>The plaintiff Company ’ s suit for damages was decreed in respect of statement where in it was charged with failure to provide decent and sanitary accommodation for it ’ s workmen and their families because such a statement was calculated to injure in the way of its business. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  33. 33. <ul><li>Who cannot be sued? </li></ul><ul><li>There are nine classes of persons who cannot be sued in tort. They are: </li></ul><ul><li>Foreign Sovereigns; </li></ul><ul><li>Ambassadors; </li></ul><ul><li>Infants; </li></ul><ul><li>Lunatics; </li></ul><ul><li>Corporations; </li></ul><ul><li>Persons having Parental or Quasi-parental authority </li></ul><ul><li>Persons having Judicial and Executive Authority </li></ul><ul><li>Trade Unions; </li></ul><ul><li>Married Women. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  34. 34. <ul><li>Foreign Sovereigns </li></ul><ul><li>English Law </li></ul><ul><li>Unless a foreign sovereign submits to the jurisdiction of the Court, English courts have no jurisdiction over an independent foreign sovereign. </li></ul><ul><li>No court can entertain an action against a foreign sovereign for anything done or omitted to be done, by him in his public capacity as representative of the nation of which he is the head. </li></ul><ul><li>For this purpose, all sovereigns are equal. It is based on the principle of international comity which holds that “ every sovereign should respect other sovereign ” . </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  35. 35. <ul><li>Mighell v. Sultan of Johore, (1894) 1 QB 149 </li></ul><ul><li>Duff Development Co. v Keltan Government, (1924) AC 797 </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  36. 36. <ul><li>Indian Law </li></ul><ul><li>The heads of all countries are exempt from the jurisdiction of the Indian Courts. </li></ul><ul><li>The real principle on which the exemption of every sovereign from the jurisdiction of every Court has been deduced is that the exercise of such jurisdiction would be incompatible with his real dignity i.e. with his absolute independence of every superior authority. </li></ul><ul><li>Section 86 of the Code of Civil Procedure lays down that: </li></ul><ul><li>“ No ruler of a sovereign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government. ” </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  37. 37. <ul><li>United States law prohibits most civil lawsuits by an individual against a foreign state under the Foreign Sovereign Immunities Act (FSIA) . </li></ul><ul><li>However, the Act includes a number of exceptions that, when satisfied, allow for such lawsuits to be filed in U.S. Courts. One of these exceptions applies to the victims of state-sponsored terrorism. </li></ul>United States of America 06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  38. 38. <ul><li>Ambassadors/Diplomatic Agents </li></ul><ul><li>The protection of unhampered and free exercise of the diplomatic function was recognised as one of the fundamental purposes of the law of diplomatic immunity in t he Havana Convention, 1928, the Draft of the Harvard Research Committee, 1932 and the Vienna Convention on Diplomatic Relations, 1961 . </li></ul><ul><li>In The Parlement Belge (1880) 5 PD 197, 207, Brett LJ, asserted that “ the immunity of an ambassador from the jurisdiction of the Courts of the country to which he is accredited is based upon his being the representative of the independent Sovereign or State, which sends him upon the faith of his being admitted to be clothed with the same independence of and superiority to all adverse jurisdiction as the Sovereign authority whom he represents would be ” . </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  39. 39. <ul><li>Ambassadors cannot be sued for torts either in the Courts of England or in the Courts of India on principles of international policy. The immunity also extends to the family of such minister or ambassador. </li></ul><ul><li>In India, the provision of Section 86 of the Code of Civil Procedure applies in case of Ambassador also. </li></ul><ul><li>The remedy against an ambassador is to move one ’ s own Government to induce the Government of that country to take an action against the ambassador and his staff, which they may think to fit to satisfy the Government which complains. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  40. 40. <ul><li>To give effect to the Vienna Convention of Diplomatic Relations, 1961 , India formulated the Diplomatic Immunities Privileges Act, 1964 , which essentially deals with the diplomatic privileges and immunities as set out in the convention. </li></ul><ul><li>Accordingly, diplomatic agents enjoy absolute immunity from the criminal jurisdiction of the receiving state, and immunity from its civil and administrative jurisdiction. </li></ul><ul><li>This immunity of diplomats extends not merely to their own persons, but to their suite and members of their family forming part of their household, provided that they are not nationals of the host country. </li></ul>India 06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  41. 41. <ul><li>Minor (Infant) </li></ul><ul><li>As per sections 10 and 11 of the Indian Contract Act, 1872 a minor is incompetent to contract. </li></ul><ul><li>In Mohori Bibee v. Dhurmodas Ghose , (1903) 30 Cal. 539, it was held that a minor ’ s agreement being void ab initio; no action can be brought under the law of contract against him. </li></ul><ul><li>Sections 82 & 83 Indian Penal Code </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  42. 42. <ul><li>The law of torts does not make any distinction on the basis of age. Thus a child of seven years could be sued for trespass like a person of full age. </li></ul><ul><li>However if the tort is such as requires a special mental element such as deceit, malicious prosecution, a child cannot be held liable for the same unless sufficient maturity for committing that tort can be proved in this case. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  43. 43. <ul><li>Walmsley v. Humenick , (1954) 3 D.L.R. 232 </li></ul><ul><li>The Supreme Court of British Columbia held that the defendant, a child of five years, could not be held liable for negligence because he had not reached that stage of mental development where it could be said that the should be found legally responsible for his negligent acts. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  44. 44. <ul><li>Sometimes, the same act on the part of a minor may result in such wrongs – a tort and the breach of contract. The question will arise in such a case are: </li></ul><ul><li>I. Can a minor be sued under the law of torts although permitting such an action may mean indirect enforcement of a void agreement? Or, </li></ul><ul><li>II. Will he be exempt from liability in tort, also because his act is also breach of contract for which he can ’ t be sued? </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  45. 45. <ul><li>Johnson v. Pye , (1665) 1 Sid 258 </li></ul><ul><li>A minor obtained a loan of pounds 300 falsely representing his age. It was held that he could not be asked to repay the loan in action for deceit. </li></ul><ul><li>Ballet v. Mingay , (1943) K.B. 281 </li></ul><ul><li>A minor hired a microphone and an amplifier and improperly passed it to a friend. The infant was held liable for detinue . [1] </li></ul><ul><li>[1] When the defendant is wrongfully detaining the goods belonging to the plaintiff and refuses to deliver the same on lawful demands, the plaintiff can recover the same by bringing an action for detinue. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  46. 46. <ul><li> Liability of parents for children ’ s torts </li></ul><ul><li>As a general rule, a parent or a guardian cannot be held liable for the torts of a child. There are two exceptions to this rule: </li></ul><ul><li>When the child is father ’ s servant or agent, the father is vicariously liable. [Not as father but in the capacity of an employer or principal] </li></ul><ul><li>When the father himself, by his own negligence, affords his child an opportunity to commit a tort, he is liable. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  47. 47. <ul><li>Bebee v. Sales , (1916) 32 T.L.R. 413 </li></ul><ul><li>The father supplied an airgun to his son, aged 15 years. Even after some complaints of mischief caused by the use of the gun, he allowed the gun to remain with the boy, who, thereafter, accidentally wounded the plaintiff. The father was held liable. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  48. 48. <ul><li>Lunatics </li></ul><ul><li>As per section 84 of the Indian Penal code , Insanity is a good defence in the Criminal law when at the time of commission of the crime, the accused by reason of unsoundness of mind was incapable of knowing the nature of his act or that what he was doing was either wrong or contrary to law . </li></ul><ul><li>Lunacy, like infancy is not a good defence in an action for a tort except in case where intention, knowledge, malice, or any other mental condition is essential to create a tortuous liability, and the lunatic may be found incapable of having such mental condition or intention or knowledge sufficient to impose liability upon him. </li></ul><ul><li>Illustration: </li></ul><ul><li>Malicious Prosecution, Deceit </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  49. 49. <ul><li>Ranagangulu v. Seaswan , AIR 1947 Ker. 25 </li></ul><ul><li>The Kerala High Court held that lunacy cannot be regarded as a ground of exemption from civil wrong as it is ordinarily considered in law of crimes because the object of the law of tort is compensation and not punishment. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  50. 50. <ul><li>Prof. Winfield has quoted three reasons for fixing the liability on the lunatics: </li></ul><ul><li>where one or two innocent persons must bear loss, the loss must fall on him who did the act; </li></ul><ul><li>public policy which requires the rule in order to include his relative to keep the lunatic under restraint and also in order to prevent tort-feasors from feigning insanity; </li></ul><ul><li>the lunatic must bear the loss occasioned by his torts, as he bears his other misfortunes. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  51. 51. <ul><li>Corporations </li></ul><ul><li>Whether Corporation liable for fraud or malice </li></ul><ul><li>At one time it was thought that a corporation could not be held liable for wrongs involving malice or fraud on the ground that to support an action for such a wrong it must be shown that the wrong doer was actuated by a motive in his mind and that “ corporation has no mind ” . </li></ul><ul><li>It is now settled that a corporation is liable for wrongs even of malice and fraud. A corporation may be sued for malicious prosecution or for deceit. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  52. 52. <ul><li>Whether the corporation is liable for the torts of it’s servants? </li></ul><ul><li>A corporation is liable for torts committed by its agents or servants to the same extent as a principal is liable for torts of his agent or an employer for the torts of his servant, provided the tort is committed in the course of doing an act which is within the scope of the powers of the corporation. </li></ul><ul><li>It may thus be liable for “ assault, false imprisonment, trespass, conversions, libel or negligence ” . </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  53. 53. <ul><li>Can a corporation be sued for ‘ Ultra-vires ’ torts? </li></ul><ul><li>A corporation will not be liable if the act of its servant is not authorised by the article of its incorporation, in other words, which is ultra vires of the corporation. </li></ul><ul><li>Poulton v. London and S.W.E. Rly. Co. , (1867) LR 2 QB 534 </li></ul><ul><li>A station master in the employment of the defendant company arrested the plaintiff for refusing to pay the freight for a horse that had been carried on the defendant ’ s railway. The railways company had authority under the Act of Parliament to arrest a person who did not pay its fare but not to arrest a person for non-payment for the carriage of goods. </li></ul><ul><li>It was held that the railway company was not liable as the company having no power in itself to arrest for such non-payment it could not give the station master any power to do the act. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  54. 54. <ul><li>Tiruveriamuthu Pillai v. Municipal Council , AIR 1961 Mad. 230 </li></ul><ul><li>The plaintiff ’ s dog was killed by the employee of a Municipal council in the course of the discharge of their function of killing stray dogs in the municipal town. In an action by the plaintiff for damages against the Council for the loss of the dog, it was held that the Council is liable for damages. A corporation cannot be immune form liability in respect of torts brought about at its instance. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  55. 55. <ul><li>In Municipal Board of Ahmedabad v. Panubhai ,(1934) 37 Bom. LR 468, held by Rangnekar, J: </li></ul><ul><li>“ A corporation cannot be deemed to be actuated by that kind of malice which essential to the maintenance of an action for malicious prosecution, instituted by the officer, in the scope of their duty, provided the necessary ingredients of such a prosecution are made out. A corporation may, in the assertion of its rights render itself liable for malicious prosecution. ” </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  56. 56. <ul><li>Persons having Parental or Quasi Parental Authority </li></ul><ul><li>Parents and persons in loco parentis have a right to administer punishment on a child to prevent him from doing mischief to him or others. </li></ul><ul><li>However one must remember that such an authority warrants the use of reasonable and moderate punishment only and therefore, if there is an excessive use of force, the defendant may be liable for assault, battery or false imprisonment, as the case may be. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  57. 57. <ul><li>In England, as per Section 1(7), Children and Young Persons Act, 1933 , a parent, teacher, or other person having lawful control or charge of a child or young person is allowed to administer punishment on him. </li></ul><ul><li>The authority of a teacher to correct his students is not limited only to the wrongs which the student may commit upon the school premises but may also extend to the wrongs done by him outside the school because there is not much opportunity for boy to exhibit his moral conduct while in school under the eye of the master the opportunity is while he is at play or outside the school. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  58. 58. <ul><li>R. v. Newport (Salop) Justices , (1929) 2 K.B. 416 </li></ul><ul><li>It has been held that if the school rules prohibited smoking, both in the school and in the public, the school master was justified in caning a student whom he had found smoking cigarette in a public street. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  59. 59. <ul><li>Traditionally it is held that parents have the legal right to smack their children as part of administering of reasonable punishment. However any force used to restrain or punish a naughty child must always be reasonable or ti will amount to tort. </li></ul><ul><li>In United Kingdom, corporal punishments was first banned in state schools in 1987 and has been banned in all schools since 1998. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  60. 60. <ul><li>A v. United Kingdom , (1998) 2 FLR 959 </li></ul><ul><li>A 48 year old scottish teacher who pulled down his eight year old daughters pants and spanked her at a health centre was convicted of assault and battery. He had exceeded the bounds of reasonableness. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  61. 61. <ul><li>R (on the application of Williamson) v. Secretary of State for Education & Employment , (2005) UKHL 15 </li></ul><ul><li>The banning of corporal punishment was challenged as being inconsistent with Christian Faith (Article 9 of the European Convention on Human Rights). </li></ul><ul><li>The Court held that abolition of corporeal punishment in schools under s 548 of the Education Act, 1948 did not infringe parental rights of those parents who believed that such punishment was consistent with Christian faith (Article 9 of the European Convention on Human Rights). </li></ul><ul><li>The Court held that the ban did interfere materially with parental rights under Art 9, but that interference was necessary in a democratic society for the protection of the rights of the vulnerable children. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  62. 62. <ul><li>Persons having Judicial and Executive Authority </li></ul><ul><li>Judicial Officers ’ Protection Act, 1850 grants protection to a judicial officer for any act done or ordered to be done by him in the discharge of his judicial duty. He is protected even though he exceeds his jurisdiction provided that at that time he honestly believed that he had jurisdiction to do or order the act complained of. </li></ul><ul><li>The Object of the above stated protection is to enable the judicial officers to administer the law without any fear of unwarranted litigation against them. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  63. 63. <ul><li>Section 1 of the Act reads as follows: </li></ul><ul><li>“ No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any civil court for any act done or ordered to be done by him in the discharge of his judicial duty whether or not within the limits of his jurisdiction: </li></ul><ul><li>Provided that he at the time in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any court or other person, bound to execute the lawful warrants or orders of acting judicially shall be liable to be sued in any civil court, for the execution of any warrant or order which he would be bound to execute, if within the jurisdiction of the person issuing the same. ” </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  64. 64. <ul><li>Limits of such protection </li></ul><ul><li>1. No such protection is granted if a magistrate is acting mala fide and outside his jurisdiction. </li></ul><ul><li>Sailajanand Pandey v Suresh Chandra Gupta , AIR 1969 Pat. 194 </li></ul><ul><li>The magistrate acting mala fide, illegally and outside his jurisdiction, ordered the arrest of the plaintiff. The Patna High Court held that he was not entitled to the protection given by the Judicial Officer ’ s Protection Act, 1850 and was, therefore, liable for the wrong of false imprisonment. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  65. 65. <ul><li>2. The protection of judicial privilege applies only to judicial proceedings as contrasted with administrative or ministerial proceedings and where, a judge acts both judicially and ministerially or administratively, the protection is not afforded to the act done in the later capacity. </li></ul><ul><li>State of U.P. v. Tulsi Ram , AIR 1971 All. 162 </li></ul><ul><li>Five persons were prosecuted for certain offences. One of them was acquitted by the Sessions Court and another by the High Court. The High Court upheld the conviction of only three of the five persons and authorised the issue of warrants against these three convicted persons. The judicial magistrate acting negligently signed an order for the arrest of all the five persons. As a result of this order, the plaintiffs, even though they had been acquitted by the High Court, were arrested by the police. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  66. 66. <ul><li>They filed a suit claiming compensation of Rs. 2,000 from the judicial officer and the State of U.P. stating that their arrest before their relations and friends on the day of Holi festival had caused much humiliation, disgrace, physical discomfort and mental suffering to them. </li></ul><ul><li>The lower appellate court held that the judicial officer was protected by the Judicial Officer ’ s Protection Act, 1850 but the State of U.P. was vicariously liable and passed a decree of Rs. 500 against the state of U.P. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  67. 67. <ul><li>The Allahabad High Court, on an appeal made by the State of U.P. held that the State was not liable because the act done by its servant was in the discharge of his duties imposed by law. </li></ul><ul><li>Further, it held that the judicial officer was liable for the wrongful arrest of the plaintiff-respondents as the judicial officer was not exercising any judicial function but only an executive function while issuing warrants and therefore, the protection under the Judicial Officers ’ Protection Act, 1850 could not be available in this case. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  68. 68. <ul><li>Article 361 of the Constitution of India, the President, Governors and Raj-pramukhs of States and Sardar – i – Riyasat of Jammu & Kashmir are exempted from the jurisdiction of any court in India. </li></ul><ul><li>Under several statutes public servants are protected against prosecution for acts done in pursuance thereof: </li></ul><ul><li>Section 132 of the Criminal Procedure Code (Act V of 1898); </li></ul><ul><li>Section 16 of the Glanders and Farcy Act (XIII of 1899); </li></ul><ul><li>Section 24 of the Ancient Monuments Preservation Act (VII of 1904); </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  69. 69. <ul><li>Section 16 of the Dourine Act (V of 1910); </li></ul><ul><li>Section 56 (1) of the Indian Electricity Act (IX of 1910); </li></ul><ul><li>Section, 272 of the Cantonments Act (II of 1924); </li></ul><ul><li>Section 117 of the Indian Factories Act (LXIII of 1948); </li></ul><ul><li>Section 97 of the Indian Lunacy Act (IV of 1912); </li></ul><ul><li>Section 11 of the Defence of India (Criminal Law Amendment) Act (IV of 1915); </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  70. 70. <ul><li>Section 2 of the Indemnity Act (XXVII of 1919); </li></ul><ul><li>Section 293 of the Indian Income Tax Act (XLVIII of 1961); </li></ul><ul><li>Section 87 of the Indian Mines Act (XXXV of 1952); </li></ul><ul><li>Section 14 of the Indian Naval Armament Act (VII of 1923); </li></ul><ul><li>Section 24 of the Bombay Nurses, Midwives and Health Visitors Registration Act (Bom XIV of 1954)). </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  71. 71. <ul><li>Trade Unions </li></ul><ul><li>As per section 13 of the Trade Unions Act, 1926 , every registered Trade Union shall be a body corporate with all attributes of a legal personality. </li></ul><ul><li>Section 18 of the Act enacts that no suit shall lie against a registered trade union, its members or officers in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the Trade Union was a party on the ground only </li></ul><ul><li>that such act induces some other person to break a contract of employment, or </li></ul><ul><li>that it is an interference with the trade, business or employment of some other person or with the right of some other person to dispute of his capital or labour as he wills. </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
  72. 72. <ul><li>All the Best! </li></ul>06/10/11 Dr C J Rawandale, Director, Symbiosis Law School, NOIDA
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