LLB LAW NOTES ON LAW OF TORTS

Subject: Law of Torts
Class: LL.B. I-SEMESTER
Q. Define Law of Tort and Law of Torts? Discuss its nature.
'OR'
"A tort is a civil injury but all civil injuries are not Torts". Explain. Distinguish
between Tort and Crime. How many kinds of Torts are there?
The expression 'Torts' is of French origin. The word tort has been derived from the latin
word "tortum" which means 'twisted' or a 'crooked act'. In general, it means conduct
that adversely affects the legal right of others and is thus, "wrong". For a healthy society

it is necessary that it be free of anti-social elements and that an individual should have
freedom to exercise his rights without being restricted by others. Further, if there is a
transgression of any right, there must be a way to compensate or to restore the right.
This is essentially what the maxim, "Ubi just ibi remedium" implies. Where ever there
is a right, there is a remedy. Indeed, a right has no value if there is no way to enforce it.
Such rights of individuals primarily originate from two sources - contractual obligations
and inherent rights that are available to all the citizens against every other citizen, as
rights in rem.
The expression 'wrong' is of two kinds, namely:-
(1) Public wrong;
(2) Private wrong.
All acts, which are identified to be punishable under the Indian Penal Code, 1860 are
called offences ( sec. 40,I.P.C.) or crimes or public wrongs and are tried in criminal
courts. The rest are called private wrongs and are tried in civil courts. Therefore, tort is
a civil wrong and is tried in civil court. Further, wrong takes place in two ways -viz. (a)
commission of an act. eg. Negligent operation/surgery by a doctor, causing the death of
the patient; and (b) omission of an act. eg. Omission or failure to give medicine by a
nurse, causing the death of the patient.
The term 'Tort' literally means ''a wrongful act committed by a person, causing
injury or damage to another, thereby the injured institutes(files) an action in civil court
for a remedy, viz., unliquidated damages or injunction of property or other available
relief. The expression ''unliquidated damages'' means ''the amount of damages to be
fixed or determined by the court''.

The person who commits tort is called ''tort-feasor'' or ''wrongdoer''. The other
person who suffered injury or damages is called injured or aggrieved.
DEFINITION:- There can be innumerable types of acts that can transgress the rights of
others and it is not possible to come up with a definition that can accommodate all the
cases. However, the following are some definitions from the experts are given below -
(1) According to Salmond :- '' A tort is a civil wrong for which the remedy is action in
common law for unliquidated damages and which is not exclusively a breach of
contract or breach of trust or other equitable obligation''.
(2) According to Winfield: - '' Tortious liability arises from the breach of duty
primarily affixed by law. The duty is towards persons in general and its breach is
redressable by an action for unliquidated damages''.
(3) According to Fraser: - '' Tort in an infringement of a right in rem of a private
individual giving a right of compensation at the suit of the injured party''.
Thus, it can be seen that tort is an act while the law of tort is the branch of law that
provides relief to the person who has been injured due to a tortious act.
From the above definitions, it is clear that the nature of a tort is that it is a civil wrong.
However, not all civil wrongs are torts. For example, breach of contract and breach or
trust are civil wrongs but are not torts because their remedies exist in the contract itself.
To determine if a particular act is a tort or not, we must first make sure that it is a civil
wrong. We should then make sure that it is not a breach of contract or breach of trust.

(Please give the pigeon hole theory also which is given by salmond)
NATURE OF TORT:-
Historically, crime and tort originated from the same root. Later on, they separated on
the account that a crime does not only affect the victim but also to the society as a
whole to a great extent. Thus, the branch of law that deals with criminal conduct
evolved a lot faster than the branch of law that deals with torts.
The nature of tort can be understood by distinguishing it from crime and contractual
civil liabilities. It can be said that tort is the residual of wrongful acts that are not crime
and that do not fall under contractual liabilities. Thus, if a wrongful act is neither crime
nor a violation of a contract, it may fall under tort. The damages are unliquidated and
are decided only by the common sense of the courts. The following differences between
Tort and Crime and Tort and Breach of Contract, shows the true nature of Tort.
Distinction between Tort and Breach of Contract:-
Tort Breach of Contract
(1)Tort occurs when the right available to all the
persons in general (right in rem) is violated without
the existence of any contract.
(1)A breach of contract occurs due to a
breach of a duty (right in persona)
agreed upon by the parties themselves.
(2)Victim is compensated for unliquidated damages
as per the judgment of the judges. Thus, damages are
always unliquidated.
(2)Victim is compensated as per the
terms of the contract and damages are
usually liquidated.
(3)Duty is fixed by the law of the land and is towards
all the persons.
(3)Duty towards each other is affixed
by the contract agreed to by the

parties.
(4)Doctrine of privity of contract does not apply
because there is no contract between the parties. This
was held in the case of Donaghue vs Stevenson
1932.
(4)Only the parties within the privity
of contract can initiate the suit.
(5)Tort applies even in cases where a contract is void.
For example, a minor may be liable in Tort.
(5)When a contract is void, there is no
question of compensation. For
example, a contract with a minor is
void ab initio and so a minor cannot be
held liable for anything.
(6)Justice is met by compensating the victim for his
injury and exemplary damages may also be awarded
to the victim. In Bhim Singh vs State of J K AIR
1986 - the plaintiff was awarded exemplary damages
for violation of his rights given by art 21.
(6)Justice is met only by compensating
the victim for actual loss.
In the case of Donaghue vs Stevenson 1932, A purchased ginger beer in a
restaurant for his woman friend. She drank a part of it and poured the rest into a glass.
Thereby, she saw a dead snail in the drink. She sued the manufacturer. It was held that
the manufacturer had a duty towards the public in general for making sure there are no
noxious things in the drink even though there was no contract between the purchaser
and the manufacturer.
The same principal was applied in the case of Klaus Mittelbachert vs
East India Hotels Ltd AIR 1997. In this case, Lufthansa Airlines had a contract with
Hotel Oberoi Intercontinental for the stay of its crew. One of the co-pilots was staying
there took a dive in the pool. The pool design was defective and the person's head hit
the bottom. He was paralyzed and died after 13 yrs. The defendants pleaded that he was

a stranger to the contract. It was held that he could sue even for the breach of contract as
he was the beneficiary of the contract. He could also sue in torts where plea of stranger
to contract is irrelevant. The hotel was held liable for compensation even though there
was no contract between the person and the hotel and the hotel was made to pay 50Lacs
as exemplary damages.
Distinction between Tort and Crime:-
Tort Crime
(1)Tort occurs when the right available to all the
persons in general (right in rem) is violated without
the existence of any contract.
(1)Tort occurs when the right available
to all the persons in general (right in
rem) is violated and it also seriously
affects the society.
(2)Act is comparatively less serious and affects
only the person.
(2)Act is comparatively more serious
and affects the person as well as the
society.
(3)Inention is usually irrelevant.
(3)Intention is the most important
element
in establishing criminal liability. A
crime
cannot happen without Mens Rea.
(4)It is a private wrong. (4)It is a public wrong.
(5)Since it is a private wrong the wronged
individual must file a suit himself for damages.
(5)Since it is a public wrong, the suit is
filed by the govt.
(6)The suit is for damages. (6)The suit is for punishment.
(7)Compromise is possible between the parties. For
example, a person who has been defamed, can
compromise with the defamer for a certain sum of
money.
(7)There is no compromise for the
punishment. For example, if a person is
guilty of murder, he cannot pay money
and reduce his sentence.

(8)Compounding is possible.
(8)Compounding is generally not
possible.
(9)Justice is met by compensating the victim for his
injury and exemplary damages may also be
awarded to the victim. In Bhim Singh vs State of J
K AIR 1986 - the plaintiff was awarded exemplary
damages for violation of his rights given by art 21.
(9)Justice is met by punishing the
aggressor by prison or fine. In some
specific cases as given in IPC
compensation may be given to the
victim.
(10)Tortious acts are usually not criminal acts.
(10)Several criminal acts such as assault
and battery are also grounds for tortious
suit.
Q. What are its various ingredients? What conditions must be satisfied before a
liability in Tort arises?
Ingredients of Tort: (General Conditions that must be satisfied before a liability in
Tort arises.)
There are three essential elements for an act to be liable under Tort:-
1) Wrongful act or omission;
2) Duty imposed by law;
3) Legal remedy.
1. Wrongful act or omission - There must be some act or omission of a duty on the
part of the defendant. For a tort to happen, the person must have first either done

something that he was not expected to do or omitted to do something that he was
supposed to do.
Municipal Corp of Delhi vs Subhagvanti AIR 1966 - A clock tower was not
in good repairs. It fell and killed several people. MCD was held liable for its omission.
2. Duty imposed by law - The act or omission of an action must be required by law or
the duty must be imposed by law. This means that if an act that is prohibited by law
causes harm, it is liable under tort. Similarly, if the omission of an act that is required
by law, causes harm, then it is liable under tort. For example, law requires that the
driver of a vehicle must drive carefully and if driving without care, a pedestrian is hit,
the omission of the act of driving carefuly is liable under tort. However, if the
worshipers stop going to a temple and thereby cause the priest to lose money, this
action is not liable under tort because going to temple is not an act that is required by
law. Such duties that are required by law are usually towards all the people in general.
Donaghue vs Stevenson 1932 - Held that the manufacturer of a drink has a
legal duty towards the consumers to ensure that noxious substances are not included in
the drink.
3. Injury - The act or the omission must result in legal damage or injury i.e. violation of
a legal right vested in the plaintiff. This means that the act or omission must cause a
damage that is recognized by law as wrongful. For example, a person has a legal right
to enjoy his property and if someone throws trash in it, this is a violation of his legal
right and is liable under tort. However, it is possible that a legal right is violated without
causing any physical or real damage. This is explained in the maxim - Injuria Sine
Damnum.
(very important) INJURIA SINE DAMNUM: - if the plaintiff suffers injury to his
legal right, he will have a cause of action to sue the defendant even though he has
not suffered any loss or damage.

The term 'injuria' means infringement or violation of a legal right.
The term 'sine' means without or in the absence of.
The term 'damnum' means damage physical, mental or otherwise.
Thus, the above phrase ' Injuria sine damno' means '' infringement of legal right
without damage''. In other words, plaintiff's legal right is affected, but he has not
suffered any loss or damage. In such a case, the suit is maintainable even though
the plaintiff suffers no damage
Ashby vs White 1703 - The defendant wrongfully prevented the plaintiff from
voting. Even though there was no damage, the defendant was held liable.
Bhim Singh vs State of J K AIR 1986 - Plaintiff was an MLA and was
wrongfully arrested while going to assembly session. He was not produced before a
magistrate within the requisite period. It was held that this was the violation of his
fundamental rights. Even though he was release later, he was awarded 50,000RS as
exemplary damages by SC.
On the other hand, it is possible that a person suffers a huge loss or damage but none of
his legal rights are violated. This is called Damnum sine Injuria. In such cases, there is
no tortious act.
DAMNUM SINE INJURIA:- in this case, the plaintiff suffers loss or damage
without any injury to his legel right. Hence, the plaintiff's suit is not actionable.

The term 'damnum' means damage physical, mental or otherwise.
The term 'sine' means without or in the absence of.
The term 'injuria' means infringement or violation of a legal right.
Thus,the above phrase 'Damnum sine injuria' means ''Damage without the
infringement of legal right''. An act that comes within the meaning of this maxim
is not regarded as a 'tort' and the suit is not maintainable.
Glaucester Grammar School's case 1410 - Defendant opened a rival grammar
school in front of an existing one thereby causing the fees of the existing one to be
reduced from 40pence to 12 pence. He was not held liable as he did not violate any
legal right of the plaintiff.
Ushaben vs BhagyaLaxmi Chitra Mandir AIR 1978 - Plaintiff sought a
permanent injunction against the cinema house to restrain them from showing the
movie Jai Santoshi Maa. It was contended that the movie depicts the goddesses Laxmi,
Saraswati, and Parvati in bad light, which is offensive to the plaintiff. It was held that
hurt to religious sentiments is not recognized as a legal wrong. Since there was no
violation of a legal right, an injunction was not granted.
Chesmore vs Richards 1879 - Plaintiff had been drawing water from
underground for past 60 yrs. The defendant sunk a bore well on his land and drew huge
quantity of water which diminished the water supply of the plaintiff. It was held that the
defendant was not liable because he was only exercising his right and did not violate
any right of the plaintiff.
Harm due to negligence - A person is not liable in tort even if he causes harm due

to negligence but does not cause injury. In Dickson vs Reuter's Telegram Co 1877,
the defendant company delivered a telegram that was not meant for the plaintiff to the
plaintiff. Based on the telegram, the plaintiff supplied some order which was not
accepted by the sender of the telegram. Plaintiff suffered heavy losses and sued the
defendant company. It was held that the company owed a contractual duty only to the
sender of the telegram and not to the receiver. Hence they were not liable.
Harm due to malice - If a person has not caused an injury even if he does an act
with malice, he is not liable. In Bradford Corporation (mayor of) vs Pickles 1895,
the defendants sunk a shaft in their own land which caused the water to become
discoloured and unsuitable for the plaintiff. It was held that even if the defendant did it
with malice, he had not violated any right of the plaintiff and hence was not liable.
4. Legal Remedy - Historically, a person whose legal right was violated was allowed to
sue only upon a permission from the King. There were only certain predefined torts for
which the king's permission could be obtained. Thus, it was necessary to have legal
remedy for that particular violation before an action for damages could be started.
However, now, such a requirement is not there. It has been accepted that there can be
many kinds of torts and if a violation of a legal right has happened, the person is
enttitled to sue.
Kinds of Torts
As mentioned before there can be innumerable type of acts that violate the legal right of
others. The law of tort is therefore ever evolving. New ways in which the rights are
violated come to light everyday. However, they can be classified on the basis of way of
incurrment of liability into the following three categories -

Intentional - Wrongful acts that are done intentionally, irrespective of with or without
malice, belong to this category. For example, torts such as assault, battery, trespass to
land, false imprisonment are intentional torts.
Negligent Conduct - Wrongful acts that are done without any intention but because of
not taking proper care that is required by law fall into this category.
Strict Liability - Acts that are neither done intentionally nor do involve any negligence,
but still cause an injury to other are liable under the concept of strict liability as
propounded inRylands vs Fletcher. In strict liability cases, the defendant is liable even
if it acted reasonably. There are 3 types of strict liability cases:
1- keeping wild animals
2- dangerous, legal activities such as blasting roads
3- the manufacture of products (products liability)
Torts can also be classified according to the type of damage -
Physical Torts - Causing physical hurt to body such as assault, battery. It can happen
with intention or even with negligence.
Abstract Torts - Causing damage to mind or reputation such as defamation.
Tort involving property - For example, Trespass to land.
Tort involving legal right - For example, false imprisonment.
Nuisance - Causing unreasonable restriction towards exercise of one's legal right.
Q. Describe general exceptions regarding Torts that are not actionable / General
Defences for Torts.

Or
(Sometime defences can come in the short question form also)
Even when a plaintiff provides proof for the existence of all the essential elements of a
tort, it is possible in some cases for the defendant to take certain defences which can
remove his liability, These defences are nothing but specific situations or circumstances
in which a defendant is given a waiver for his tortious action. These are as follows -
1. Volenti Non fit Injuria (important)
When a person consents for infliction of an harm upon himself, he has no remedy for
that in Tort. That means, if a person has consented to do something or has given
permission to another to do certain thing, and if he is injured because of that, he cannot
claim damages. For example, A purchases tickets for a Car race and while watching the
race, an collision of cars happens and the person is injured. Here, by agreeing to watch
the race, which is a risky sport, it is assumed that he voluntarily took on the risk of
being hurt in an accident. Thus, he cannot claim compensation for the injury.
Such consent may be implied or express. For example, a person practicing the sport of
Fencing with another, impliedly consents to the injury that might happen while playing.
In Woolridge vs Sumner 1963, the plaintiff a photographer was taking photographs at
a horse show, during which one horse rounded the bend too fast. As the horse galloped
furiously, the plaintiff was frightened and he fell in the course. He was seriously
injured. It was held that the defendants had taken proper care in closing the course and
the plaintiff, by being in the show, agreed to take the risk of such an accident. The
defendants were not held liable.
However, the action causing harm must not go beyond the limit of what has been
consented. For example, in a sport of fencing, a person consents to an injruy that
happens while playing by the rules. If he is injured due to an action that violates the

rules, he can claim compensation because he never consented to an injury while playing
without rules.
In Laxmi Rajan vs Malar Hospital 1998, a woman consented for a surgery to remove
a lump from her breast. But the hospital removed her uterus as well without any
genuine reason. It was held that removing of her uterus exceed beyond what she had
consented for.
Also, the consent must be free. It must not be because of any compulsion. Thus, if a
servant was compelled by the master to do a certain task despite his protests, and if he is
injured while doing it, the master cannot take the defence of volenti non fit injuria
because the consent was not free.
Exceptions - In the following conditions, this defence cannot be taken even if the
plaintiff has consented -
Rescue Conditions - When the plaintiff suffers injury while saving someone. For
example, A's horse is out of control and is galloping towards a busy street. B realizes
that if the horse reaches the street it will hurt many people and so he bravely goes and
control's the horse. He is injured in doing so and sue's A. Here A cannot take the
defence that B did that act upon his own consent. It is considered as a just action in
public interest and the society should reward it instead of preventing him from getting
compensation.
Unfair Contract Terms - Where the terms of a contract are unfair, the defendant
cannot take this defence. For example, even if a laundry, by contract, absolves itself of
all liability for damage to clothes, a person can claim compensation because the
contract is unfair to the consumers.

2. Plaintiff the wrongdoer
A person cannot take advantage of his own wrong. This principle has been in use since
a long time as it is just and equitable. For example, a person trespassing one another's
property is injured due to darkness. He cannot claim compensation because he was
injured due to an action which was wrong on his part. However, this defence exists only
if the injury happens because of a wrongful act of the plaintiff. It does not exist if the
injury happens because of a wrongful act of the defendant even if the plaintiff was
doing a wrongful but unrelated act. For example, in Bird vs Holbrook 1828, the
plaintiff was trespassing on the defendant's property and he was hurt due to a springgun.
The defendant had put spring guns without any notice and was thus held liable.
3. Inevitable Accident
Accident means an unexpected occurance of something that could not have been
predicted or prevented. In such a case, the defendants will not be liable if they had no
intention to cause it and if the plaintiff is injured because of it. For example, in Stanley
vs Powell 1891, the plaintiff and the defendant were members of a shooting party. The
defendant shot a bird but the bulled ricocheted off a tree and hit the plaintiff. The
defendant was not held liable because it was an accident and the defendant did not
intent it and could neither have prevented it.
However, the defence of Inevitable Accident is not a license to negligence. For
example, A has hired B's car. While driving, one of the tires bursts and causes accident
injuring A. Here, if the tires were worn out and were in bad condition, it would be
negligence of B and he would be held liable for A's injuries.
4. Act of God (vis major)
An act of God in a legal sense is an extraordinary occurance of circumstance which
could not have been predicted or prevented and happens because of natural causes.

Nobody can predict, prevent, or protect from a natural disaster such an an earthquake or
flood. Thus, it is unreasonable to expect a person to be liable for damages caused by
such acts of God. There are two essential condtions for this defence - the event must be
due to a natural cause and it must be extraordinary or some thing that could not have
been anticipated or expected. For example, heavy rains in the monsoon are expected
and if a wall falls and injures someone, it cannot be termed an act of god because
protection for such expected conditions should have been taken. But if a building falls
due to a massive earhquake and injures and kills people, this defence can be used.
In Ramalinga Nadar vs Narayan Reddiar AIR 1971, it was held that criminal
activities of an unruly mob is not an act of God.
5. Private Defence
As per section 96 of IPC, nothing is an offence that is done in exercise of the right of
private defence. Thus, law permits the use of reasonable and necessary force in
preventing harm to human body or property and injuries caused by the use of such force
are not actionable. However, the force must be reasonable and not excessive. In Bird vs
Hollbrook 1892, the defendant used spring guns in his property without notice. It was
held that he used excessive force and so was liable for plaintiff's injury even though the
plaintiff was trespassing on his property.
6. Mistake
Generally, mistake is not a valid defence against an action of tort. Thus, hurting a
person under the mistaken belief that he is trespassing on your property, will not be
defensible. However, in certain cases, it could be a valid defence. For example, in the
case of malicious prosecution, it is necessary to prove that the defendant acted
maliciously and without a reasonable cause. If the prosecution was done only by
mistake, it is not actionable.
Further, honest belief in the truth of a statement is a defence against an action for deceit.

7. Necessity
If the act causing damage is done to prevent a greater harm, it is excusable. For
example, a Ship ran over a small boat hurting 2 people in order to prevent collision with
another ship which would have hurt hundreds of people is excusable. Thus, in Leigh vs.
Gladstone 1909, force feeding of a hunger striking prisoner to save her was held to be a
good defence to an action for battery.
8. Statutory Authority
An act that is approved by the legislature or is done upon the direction of the legislature
is excused from tortious liability even though in a normal circumstances, it would have
been a tort. When an act is done under the authority of an Act, it is a complete defence
and the injured party has no remedy except that is prescribed by the statute.
In Vaughan vs Taff Valde Rail Co 1860, sparks from an engine caused fire in
appellant's woods that existed in his land adjoining the railway track. It was held that
since the company was authorized to run the railway and since the company had taken
proper care in running the railway, it was not liable for the damages
Q. What are the torts relating to the absolute liability? What are its kinds? What
is Ryland vs Fletcher rule (strict liability)? What are its exceptions? Is this rule
applied in India in present circumstances? If not, why? (very important )
In certain situations, a person is held liable for the damages caused by his actions even
when the actions are done without any ill intention or negligence on account of equity
and justice. For example, if a person keeps a lion for a pet and despite of all the
precautions the lion escapes the cage and kills someone. In this case, the owner of the
lion will be liable even though he had no ill intention to cause death and had taken all
the precautions to keep the lion in the cage. This seems just because the damage

happened only because he brought a dangerous thing on his property. He was also
aware of the consequences if the lion escapes the cage and so he should be made liable
if it escapes and causes damage.
This principle of holding a person liable for his actions without any kind of wrong
doing on his part is called the principle of absolute liability or no fault liability. This
principle was first upheld in the case of Ryland vs Fletcher by the privy council in
1868. However, later on some exceptions to this were also established due to which
"strict liability" is considered a more appropriate name for this principle. In this case,
the defendant hired contractors to build a reservoir over his land for providing water to
his mill. While digging, the contractors failed to observe some old disused shafts under
the site of the reservoir that lead to plaintiff's mine on the adjoining land. When water
was filled in the reservoir, the water flooded the mine through the shafts. The plaintiff
sued the defendant. The defendant pleaded that there was no intention and since he did
not know about the shafts, he was not negligent even though the contractors were. Even
so, he was held liable. J Blackburn observed that when a person, for his own purposes,
brings to his property anything that is likely to cause a mischief if it escapes, must keep
it at his peril and if it escapes and causes damage, he must be held liable. He can take
the defence that the thing escaped due to an act of the plaintiff or due to vis major (act
of God) but since nothing of that sort happened here, then it is unnecessary to inquire
what excuse would
be sufficient.
To this rule promulgated by J Blackburn, another requirement was added by the Court
of Exchequer Chamber, that the use must be a non-natural use of land as was the case in
Ryland vs Fletcher itself. For example, growing of regular trees is a natural use but
growing poisonous trees is not. Keeping dogs as pet is a natural use but keeping wild
beasts is not. Thus, the conditions when this rule will apply are –

The thing kept must be dangerous - The thing kept on the land must be as such as is
likely to cause mischief if it escapes. For example, storing gas or explosives or wild
beasts are all likely to cause damage if they escape.
The thing must escape - If the thing is within the boundary of the defendant's land, he
is not liable. The thing must escape out of his land for him to be liable. In Crowhurst
vs Amersham Burial Board 1878, branches of a poisonous tree were hanging outside
the land of the defendant. Plaintiff's cattle ate them and died. Defendant was held liable
because protrusion of branches out side his property were considered as escaping from
his property. However, in Ponting vs Noakes 1994, when the plaintiff's horse intruded
over his boundary and ate poisonous leaves of the defendant's tree, he was not held
liable because there was no escape.
The thing must be a non natural use of land - The use must not be an ordinary use of
the land. There must be a special purpose because of which it brings additional danger
to other. In Noble vs Harrison 1926, a branch of a tree growing on defendant's land
broke and fell on plaintiff's vehicle. It was held that growing regular trees is not a non
natural use of land and the branch fell because of an inherent problem and not because
of any negligence of the defendant and so he was not liable.As mentioned before the
following are exceptions or defenses against this rule –
Plaintiff's own default - If the thing escapes due to plaintiff's fault the defendant
cannot be held liable. In Eastern and South African Telegraph Co. Ltd. v Capetown
Tramway Co 1902. the plaintiff's submarine cable transmissions were disturbed by
escape of electric current from defendant's tramway. It was held that since the current
was not causing any problem to regular users and it was causing problem to the cables

only because they were too sensitive and so the defendant cannot be held liable. One
cannot increase his neighbor's liabilities by putting his land to special uses.
EXCEPTIONS
Act of God - In circumstances where no human has control over, no one can be held
liable. In Nichols vs Marsland 1876,the defendant created artificial lakes to store
rainwater. In that particular year, there were exceptionally heavy rains, which caused
the embankments to break causing floods, which broke defendant's bridges. It was held
that since there was no negligence on the part of the defendant and the flood happened
only because of rains so heavy that nobody could imagine, the defendant was not liable.
b.Consent of the plaintiff - If the plaintiff has consented for the accumulation of the
dangerous thing, he cannot hold the defendant liable. This is also the case when an
activity is done for mutual benefit. For example, A lives on the ground floor and the
defendant lives on the floor above A's. Now, a water tank is built by the defendant to
supply water for both of them. The defendant will not be held liable for leakage of
water from the tank.
c.Act of third party - When a third party, who is not an employee or a servant or a
contractor of the defendant is responsible for causing the dangerous thing to escape, the
defendant will not be held liable for the damage. In Box vs Jubb 1879, the overflow
from the defendant's reservoir was caused by the blocking of a drain by some strangers.
The defendant was held not liable. However, if such act can be foreseen, this defenses
cannot be pleaded because the defendant must take precautions to prevent such an act.
In M.P. Electricity Board vs Shail Kumar AIR 2002, a person was killed by a live
electric wire lying on the road. SC applied the rule of strict liability and held that the

defense of act of stranger is not applicable because snapping of wire can be anticipated
and the Electricity Board should have cut off the current as soon as the wire snapped.
d.Statutory Authority - When an act is approved by the legislature or is done on the
direction of the legislature, it is a valid defence for an action of tort even when the rules
of Ryland vs Fletcher apply. However, it is not application when there is negligence.
Position in India
The principle of strict liability is applicable in India as well. For example, Motor
Vehicles Act 1938, recognizes no fault liability. Similarly, the liability of a public
carrier such as railways has also been increased from that of a bailee to an insurer.
However, there has been a deviation in the scope of this rule. Depending on the
situation, its scope has been increased as well as decreased by the courts. For example,
in Madras Railway Co. vs Zamindar 1974, the water collected in a pond for
agricultural purposes escaped and caused damage to the railway track and bridges.
Here, the application of this rule was restricted because the collection of water in such a
way is a necessity in Indian conditions and so it is a natural use of the land. This
mechanism to store rainwater is used throughout the country and since ages. Therefore,
the defendant was not held liable.
ABSOLUTE LIABILITY:
A landmark case in this respect was the case of M C Mehta vs Union of India AIR
1987. In this case, oleum gas from a fertilizer plant of Shriram Foods and Fertilizers
leaked and caused damage to several people and even killed one advocate. In this case,
the rule of Ryland vs Fletcher was applied. However, the company pleaded sabotage as
a defence. SC went one step further and promulgated the rule of Absolute Liability. It
observed that the rule of Ryland vs Fletcher was a century old and was not sufficient to
decide cases as science has advanced a lot in these year. If British laws haven't

progressed, Indian courts are not bound to follow their law and can evolve the laws as
per the requirements of the society. It held that an enterprise that engages in dangerous
substances has an absolute responsibility to ensure the safety of the common public. It
is only the company that can know the consequences of its activities and so it must take
all the steps to prevent any accident. If, even after all precautions, accident happens, the
company still should be made absolutely liable for the damages. The reason being that
the company has a social obligation to compensate the people who suffered from its
activity. SC also laid down that the measure of compensation should depend on the
magnitude and capacity of the enterprise so that it can have a deterrent effect.
Please prepare the above topics in detail this part is very important
Q. How can liability in Torts be discharged?
The following are the modes through which liability in Torts can be discharged -
Death of a party - "Actio personalis maritur cum persona" means Personal actions of a
person die with the person. But not always. In several cases, the cause of action remains
valid even after death of wrongdoer. For example, Workers' Compensation Act, Fatal
Accidents Act, etc.
Acquiescence - If the party whose right is being violated does not protest and allows
the transgression to happen without any restriction.
Waiver - If the plaintiff starts proceedings for one remedy for example, Civil suit, he
cannot file another suit under another remedy such as Tortios Suit for the same cause.
Release - If the plaintiff voluntarily releases the wrongdoer from liability. In England,
consideration is must. In India, no consideration is required.
Accord and Satisfaction - If the parties compromise and settle the dispute.
Judgement Recovered - "res judicata" - upon the damages awarded by the court.

Statute of limitation - Suit must be filed within the time frame provided by statutes of
limitations.
Q. Explain various Judicial remedies that are available to a plaintiff in an action
of tort. Are there any extra judicial remedies too? If so, enumerate them. What are
the general types of damages available in cases of Torts? Explain with examples.
What is the doctrine of remoteness of damages? Discuss law on this point.
Judicial Remedies -
Damages - It is the most important remedy of all.
Nominal Damages - In cases of Injuria Sine Damnum (Ashby vs White)
Contemtuous Damages - When plaintiff has suffered a wrong but does not deserve
compensation. For example, if the reason for battery was plaintiff's offensive remarks,
judge may think that the plaintiff does not deserve compensation.
Compensatory, Aggravated, and Exemplary Damages
Prospective Damages - Compensation for damages that haven't yet happened but are
likely happen because of defendant's tortious action.
Injunctions - An injunction is an order of the court directing the doing of some act or
restraining the commission or continuance of some act. The court has the discretion to
grant or refuse this remedy and when remedy by way of damages is a sufficient relief,
injunction may not be granted. It includes temporary and permanent injunction.
Specific restitution of Property
Extra Judicial Remedies
Besides going to the court for justice, a person, in certain situations, can also have

recourse to remedies without going to any court. Such remedies are called extra judicial
remedies and are availed by a person by his own strength as self-help. These are -
Removal of trespasser - A person is entitled to remove the trespasser by force.
Recaption of chattels (personal belongings) - A person is entitled to take possession
of his goods by force.
Abatement of nuisance - An occupier of a land is permitted to abate any nuisance that
is affecting his land.
Distress Damage feasant - A person has the right to seize goods or cattle that has
strayed on his land until compensation is paid.
Remoteness of Damage
The law allows only those losses which are not too 'remote'. There are two main tests of
remoteness which are applied in tort, namely direct consequences and reasonably
foreseeable consequences.
Direct Consequence - Provided some damage is foreseeable, liability lies for all the
natural and direct consequences flowing from the breach of duty. In Re Polemis [1921]
3 KB 560 (CA), stevedores, who were servants of the defendant, negligently let fall a
plank into a ship’s hold containing petrol in metal containers. The impact of the plank
as it hit the floor of the hold caused a spark, and petrol vapour was ignited. The ship
was destroyed. Arbitrators found that the spark could not have been reasonably
foreseen, though some damage was foreseeable from the impact. The defendant was
found liable because the claimant’s loss was a direct, though not reasonably
foreseeable, result.
Reasonable Foreseeability - In The Wagon Mound (No. 1) [1961] AC 388, the

defendant carelessly discharged oil from a ship in Sydney Harbour, and the oil floated
on the surface of the water towards the claimant’s
wharf. The claimant’s servants, who were welding on the wharf, continued their work
after being advised (non-negligently) that it was safe to do so. Sparks from the welding
equipment first of all ignited cotton waste mixed up in the oil; then the oil itself caught
fire. The claimant sued for destruction of the wharf by fire. The defendant was found
not liable in negligence, because it was not reasonably foreseeable that the oil might
ignite on water in these circumstances. Damage by fouling was foreseeable; damage by
fire (the case here) was not foreseeable. The Privy Council said that in the tort of
negligence Re Polemiswas no longer good law, and liability
would lie only for foreseeable damage of the kind or type in fact suffered by the
claimant.
SHORT QUESTION
Contributory Negligence
Contributory negligence is negligent conduct by the injured party that is a contributing
cause of her injuries, and that falls below the legal standard for protecting oneself from
an unreasonable risk of harm.
At common law, the defense of contributory negligence was an absolute defense and
served as a complete bar to recovery. Most jurisdictions today have adopted the
doctrine of comparative negligence, whereby the amount of the plaintiff’s award is
reduced by the extent to which plaintiff’s conduct contributed to the harm.
Contributory negligence is a bar to recovery only when it is a proximate cause of the
injury. If the damage is not the necessary or ordinary or likely result of contributory
negligence, but is due to some other unlikely event which could not reasonably have

been anticipated or regarded as likely to occur, the plaintiff’s negligence is too remote
to act as a bar to recovery.
Standard of Care
The standard of care in contributory negligence is the same as in ordinary negligence;
i.e., that which a reasonable person would have done under the same or similar
circumstances. The act or omission of an injured party which amounts to contributory
negligence must be a negligent act or omission, and it must serve as a proximate cause
of the injury and not merely as a condition. An act or omission that merely increases or
adds to the extent of the loss or injury will generally not preclude recovery. It may
however reduce the amount of damages.
If a plaintiff voluntarily disregards warnings and assumes the risk of certain dangers,
but is injured through the negligence of the defendant from an entirely different source
of danger, of which she was not and could not have been aware, and of whose existence
it was the duty of the defendant to warn, then the plaintiff’s failure to heed the warning
does not constitute contributory negligence.
Intentional Torts
The defense of contributory negligence generally is not available for intentional torts or
where the defendant is found to be guilty of wanton and willful misconduct. It can also
be unavailable where the defendant has violated a statute clearly designed for the
protection of the plaintiff. Contributory negligence is not a defense for strict liability
torts unless the plaintiff has knowingly assumed an unreasonable risk.
Rescue Doctrine
The majority rule is that if a person is injured while attempting to rescue another person
or property from danger, the rescuer is not contributorily negligent unless the conduct is
reckless.
Leading Cases

Alexander v. Kramer Bros. Freight Lines, Inc. – Alexander sued Kramer Brothers after
he suffered personal injuries in an accident with the defendant’s truck and Kramer
Brothers asserted contributory negligence as a defense. The court held that the plaintiff
has the burden of proof to show that he or she was not contributory negligent.
Baltimore & Ohio R. Co. v. Goodman – Goodman was struck and killed by a train while
driving over a railroad crossing. His view was obstructed and he did not get out to look
for an approaching train. The court ordered a directed verdict that Goodman was
contributory negligent on the grounds that no reasonable jury could have found in favor
of the plaintiff under the facts of the case.
Brown v. Kendall – Kendall injured Brown while trying to separate their dogs and stop
them from fighting. Brown was standing behind Kendall and he was struck in the eye
with a stick. The court held that the injured party cannot recover if both parties were not
negligent, or if both parties were negligent, or if the injured party was negligent but the
defendant was not.
Butterfield v. Forrester – Forrester laid a pole across a road. Butterfield was riding at
high speed at twilight and did not see the pole. He hit the pole and suffered personal
injuries. The court held that Butterfield was contributory negligent because if he had
been using ordinary care he would have been able to see and avoid the obstruction.
Eckert v. Long Island R. R. Co. – Eckert saw a boy sitting on railroad tracks. He
succeeded in saving the boy but was struck and killed by the train. The court held that
when a rescuer attempts to save someone in imminent peril, he may assume
extraordinary risks or perform dangerous acts without being contributory negligent.
Martin v. Herzog – Martin was killed in an accident while driving a buggy without
lights at night. The defendant was driving on the wrong side of the road. The court held
that the violation of a statutory duty of care is negligence per se and a jury may not
relax that duty. In order for a party to be liable for negligent conduct, the conduct must
be the cause of the injury.

Roberts v. Ring – Ring was 77 years old and had impaired hearing and vision. While
driving on a busy street he saw a seven year old boy run into his path but failed to stop
in time to avoid hitting him. The court held that while the defendant cannot take
advantage of impairments and infirmities to avoid a finding of negligence, the injured
party is held to a standard that takes age and maturity into account.
Smithwick v. Hall & Upson Co. – Smithwick was told not to work on a platform but
was not told that the wall was about to collapse. He worked on platform despite the
warning because he believed the risk of falling was the only danger. The court held that
the failure to heed a warning is not contributory negligence if the injury was the result
of a different source of risk caused by the defendant, and the injured party was unaware
of that risk.
Solomon v. Shuell – Plain clothes police officers were arresting robbery suspects. The
decedent thought the suspects were being attacked and was shot by one of the officers
when he came out of his house with a gun. The court held that under the rescue
doctrine, contributory negligence is not present if the rescuer had a reasonable belief
that the victim was in actual danger.
PREPARE THIS QUESTION IN DETAIL
Defamation is injury to the reputation of a person. If a person injures the reputation of
another, he does so at his own risk, as in the case of an interference with the property. A
man’s reputation is his property, and if possible, more valuable, than other property
(Dixon v. Holden, 1869).
s. 499 of the Penal Code- Whoever by words either spoken or by visible
representations, makes or publishes any imputation concerning any person intending to

harm the reputation of him, except in the cases hereinafter excepted, to defame that
person.
Ten exceptions-
1. Imputation of truth which public good requires to be made or published-
2. Public conduct of public servants-
3. Conduct of any person touching any public question-
4. Publication of reports of proceedings of Courts-
5. Merits of case decided in Court or conduct of witnesses and others concerned-
6. Merits of public performance-
7. Censure passed in good faith by person having lawful authority over another-
8. Accusation preferred in good faith to authorized person-
9. Importation made in good faith by person for protection of his or other’s interests-
10. Caution intended for good of person to who conveyed or for public good-
s. 500- Punishment for defamation- two years or fine or both.
s. 501- Printing or engraving matter known to be defamatory- Whoever prints or
engraves any matter, knowing that to be defamatory of any person, shall be punished
with two years or fine or both.
s. 502- Sale of printed or engraved substance containing defamatory matter- Whoever
sells or offers for sale any printed substance containing defamatory matter knowingly,
shall be punished with two years or fine or both.
Classification of defamation
Defamation is of two types- libel and slander. Distinction between the two is-

Libel Slander
It is written It is oral
It is permanent It is temporary
It is both tort and offence It is only tort
It is actionable per se It is not actionable per se
Intention is easier to prove Intention is not that easy to prove.
Essential elements of defamation-
i) The statement must be defamatory
ii) The said statement must refer to the plaintiff
iii) The statement must be published
iv) The statement must be passed by the defendant
Explanation-
i) The statement must be defamatory-
Defamatory statement is one which tends to injure the reputation of the plaintiff.
Whether a statement is defamatory or not depends upon how the right thinking
members of the society are likely to take it.
D.P. Choudhury v. Manjulata (1997)- There was publication of a statement in a local
daily in Jodhpur that Manjulata went out of her house on the earlier night at 11 p.m. on
the pretext of attending night classes and ran away with a boy named Kamlesh. She
belonged to a well educated family and was herself also a student of B.A class. She was
17 years of age. The news item was untrue and had been published with utter
irresponsibility and without any justification. Such publication had resulted in her being

ridiculed and affected her marriage prospects. The statement being defamatory, the
defendants were held liable.
The Innuendo
A statement may prima facie be innocent but because of some latent or secondary
meaning, it may be considered to be defamatory. When the natural and ordinary
meaning is not defamatory but the plaintiff wants to bring an action for defamation, he
must prove the latent or the secondary meaning, i.e. innuendo.
Intention to defame is not necessary- When the words are considered to be defamatory
by the persons to whom the statement is published, it is immaterial that the defendants
did not know of the facts, is considered to be defamatory.
Cassidy v. Daily Mirror Newspapers Ltd.- Mr. Cassidy was married to a lady who
called herself Mrs. Cassidy. The defendants published in their newspapers a photograph
of Mr. Cassidy and Miss ‘X’ with the following words underneath: ‘Mr. M. Cassidy,
the race horse owner, and Miss ‘X’, whose engagement has been announced’. Mrs.
Cassidy sued the defendants for libel alleging that the innuendo was that Mr. Cassidy
was not her husband and he lived with her in immoral cohabitation. The Court of
Appeal held that the innuendo was established.
ii) The statement must refer to the plaintiff-
In an action for defamation, the plaintiff has to prove that the statement of which he
complains referred to him. It is immaterial that the defendant did not intend to defame
the plaintiff.
Newstead v. London Express Newspapers Ltd.- the defendants published an article
stating that ‘Harold Newstead, a Camberwell man’ had been convicted of bigamy. The
story was true of Harold Newstead, a Camberwell barman. The action for defamation

was brought by another Harold Newstead, a Camberwell barber. As the words were
considered to be understood as referring to the plaintiff, the defendants were held liable.
iii) the statement must be published-
Publication means making the defamatory matter known to some person other than the
person defamed, and unless that is done, no action for defamation lies.
Mahendra Ram v. Harnandan Prasad- the defendant sent a defamatory letter written in
Urdu to the plaintiff. The plaintiff did not know Urdu and therefore the was read over to
him by third person. It was held that the defendant was not liable unless it was proved
that at the time of writing the letter in Urdu script, the defendant knew that the Urdu
script was not known to the plaintiff and would necessitate reading of the letter by a
third person.
iv) the statement must be passed by the defendant
Defences:
The defences to an action for defamation are-
1. Justification of truth
2. Fair comment
3. Privilege which may be either absolute or qualified.
1. Justification of truth-
In a civil action for defamation, truth of the defamatory matter is complete defence.
Under the Penal Code, merely proving that the statement was true is no defence.
Section 499 requires that besides being true, the imputation must be shown to have been
made for public good.
2. Fair comment-
For this defence it is required:

a) It must be a comment i.e. an expression of opinion
b) the comment must be fair
c) the matter commented upon must be of public interest.
3. Privilege is of two types: (a) Absolute privilege and (b) Qualified privilege
(a) Absolute privilege-
i) Parliamentary proceedings- Art. 78(3) of the Constitution states, a member of
Parliament shall not be liable in any Court in respect of anything said, or any vote
given, by him in Parliament or in any committee thereof.
ii) Judicial proceedings-
iii) State communications-
(b) Qualified privilege- in certain cases, the defence of qualified privilege is also
available. To avail this defence, the defendant has to prove the following two points:
i) The statement was made on a privileged occasion, i.e. it was in discharge of duty or
protection of an interest
ii) The statement was made without any malice.
Trespass:
Trespass is of two types:
(i) Trespass to body,
(ii) Trespass to land
Trespass to body: please prepare the ASSAULT and BATTERY in this topic

Trespass to land or property:
Trespass to land means interference with the possession of land without lawful
justification. In trespass, the interference with the possession is direct and through some
tangible object.
Trespass is a wrong against possession rather than ownership. Therefore, a person in
actual possession can bring an action even though, against the true owner, his
possession was wrongful.
Remedies: both judicial and extra judicial. Extra judicial remedies are:
i) Re-entry
ii) Action for ejectment
iii) Action for mesne profit
iv) Distress damage pheasant- to seize trespassing cattle until compensation has been
paid.
Judicial remedies are mentioned in s. 297 and 441-462 of the Penal Code, 1860:
Liability:
Liability is of two types:
(i) Absolute or strict, and
(ii) Vicarious.
(i) Absolute or strict liability- Sometimes a person may be liable for some harm even
though he is not negligent in causing the same, or there is no intention to cause the
harm, or sometimes he may even have made some positive efforts to avert the same.
In Rylands v. Fletcher, 1868, the House of Lords laid down the rule recognizing ‘no
fault’ liability. The liability recognized was ‘strict liability’, i.e. even if the defendant
was not negligent or rather, even if the defendant did not intentionally cause the harm or
he was careful, he could still be made liable under the rule.

Facts of the case- the defendants got a reservoir constructed, through independent
contractors, over his land for providing water to his mill. There were old disused shafts
under the site of the reservoir, which the contractors failed to observe and so did not
block them. When the water was filled in the reservoir, it burst through the shafts and
flooded the plaintiff’s coal-mines on the adjoining land. The defendant did not know of
the shafts and had not been negligent although the independent contractors had been.
Even though the defendant had not been negligent, he was held liable.
(ii) Vicarious liability- In certain cases, a person is held liable for the act of another
person. The common example of such liability are-
a) Liability of the principal for the tort of his agent
b) Liability of partners of each other’s tort
c) Liability of the master for the tort of his servant
a) Principal and agent- Where one person authorizes another to commit a tort, the
liability for that will be not only of that person who has committed it but also of that
who authorized it. It is based on the general principle ‘Qui facit per alium facit per se’
which means that the act of an agent is the act of the principal. For any act authorized
by the principal and done by the agent both of them are liable.
Lloyd v. Grace, Smith & Co. – Mrs. Lloyd, who owned two cottages but was not
satisfied with the income there from, approached the office of Grace, Smith & Co., a
firm of solicitors, to consult them about the matter of her property. The managing clerk
of the company attended her and advised her to sell the two cottages and invest the
money in a better way. She was asked to sign two documents, which were supposed to
be sale deeds. In fact, the documents got signed were gift deeds in the name of the
managing clerk himself. He had acted solely for his personal benefit and without the
knowledge of his principal. It was held that since the agent was acting in the course of
his authority, the principal was liable for the fraud.

b) Partners- The relationship as between partners is that of principal and agent. The
rules of the law of agency apply in case of their liability also. For the tort committed by
any partner in the ordinary course of the business of the firm, all other partners are
liable to the same extent as the guilty partner.
Hamlyn v. Houston & Co.- One of the two partners of the defendant’s firm, acting
within the general scope of his authority as a partner, bribed the plaintiff’s clerk and
induced him to make a breach of contract with his employer (plaintiff) by divulging
secrets of the firm were liable for this wrongful act committed by only one of them.
c) Master and servant- A servant is a person employed by another to do work under the
directions and control of his master. If a servant does a wrongful act in the course of his
employment, the master is liable for it. The servant, of course, is also liable. The
doctrine of liability of the master for act of his servant is based on the maxim
‘respondent superior’, which means ‘let the principal be liable’.
For the liability of the master to arise, the following two essentials are to be present:
i) The tort was committed by the ‘servant’;
ii) The servant committed the tort in the ‘course of his employment’.
Nuisance:
Nuisance is a tort means an unlawful interference with a person’s use or enjoyment of
land, or some right over, or in connection with it. The interference may be any way, e.g.
noise, vibration, heat, smoke, smell, fumes, water, gas, electricity or disease producing
germs.
Nuisance is distinguished from trespass-
Trespass Nuisance
Interference is direct. Interference is consequential.

It is interference with a person’s
possession of land.
It is interference with a person’s use of
land.
The interference is always through some
material or tangible objects.
Nuisance can be committed through the
medium of intangible objects.
Trespass is actionable per se. Special damage has to be proved in order
to obtain remedy.
Nuisance is of two types:
(i) Public or common nuisance
(ii) Private nuisance, or tort of nuisance
i) Public Nuisance
Public nuisance is a crime whereas private nuisance is a civil wrong. Public nuisance is
interference with the right of public in general and is punishable as an offence. For
example, obstructing a public way by digging a trench. Such obstruction may cause
inconvenience to many persons but none can be allowed to bring a civil action for that.
ii) Private nuisance
To constitute the tort of nuisance, the following essentials are required to be proved:
a) unreasonable interference
b) Interference is with the use of enjoyment of land
c) Damage
a) unreasonable interference- Interference may cause damage to the plaintiff’s property
or may cause personal discomfort to the plaintiff in the enjoyment of property. Every

interference is not a nuisance. To constitute nuisance, the interference should be
unreasonable. Ushaben v. Bhagya Laxmi Chitra Mandir.
b) Interference with the use or enjoyment of land- Interference may cause either: (i)
injury to the property itself, or (2) injury to comfort or health of occupants of certain
property.
c) Damage- Unlike trespass, which is actionable per se, actual damage is required to be
proved in an action for nuisance.
Fay v. Prentice- a cornice of the defendant’s house projected over the plaintiff’s garden.
It was held that the mere fact that the cornice projected over the plaintiff’s garden raises
a presumption of fall of rain water into and damage to the garden and the same need not
be proved. It was a nuisance. In private nuisance, although damage is one of the
essentials, the law often presume it.
Difference between public nuisance and private nuisance-
Public nuisance Private nuisance
It is a crime. It is a civil wrong
It is interference with the right of public
in general.
It is interference with the right of an
individual or few persons
None is allowed to bring a civil action
against it.
The person whose right is interfered with
can bring a civil action against it.
Defence
i. Prescriptive right to commit nuisance- A right to do an act, which would otherwise be
a nuisance, may be acquired by prescription. If a person has continued with an activity

on the land of another person for 12 years or more, he acquires a legal right by
prescription, to continue therewith in future also. This right is called easement right.
ii. Statutory authority- An act done under the authority of a statute is a complete
defence. Thus, a railway company authorized to run railway trains on a track is not
liable if, in spite of due care, the sparks from the engine set fire to the adjoining
property, or the value of the adjoining property is depreciated by the noise, vibrations
and smoke by the running of trains.
Provisions of nuisance in the Penal Code
There are 11 types of nuisance mentioned in s. 268 – s. 294A.
Please prepare the given topics in detail from book this is only just introduction.
NEGLIGENCE
Meaning:- the term “negligence” means “where a person has a duty to take care and the
care is not taken resulting in injury to another”. In other words, infliction of an injury or
damage as a result of failure to take care is called “Negligence”.
Definition:- prof. Winfield defined ‘negligence’ as “the breach of a legal duty to take
care, which results in damage, undesired by the defendant to the plaintiff”.
Baron Alderson in Blyth vs. Birmingham water works co., defined “Negligence is the
omission to do something, which a reasonable man guided upon those consideration,
which ordinarily regulate human affairs, would do or doing something, which a prudent
or reasonable man would not do”

Essentials of Negligence:- the plaintiff in an action for negligence, has to prove the
following conditions :
That the defendant owed a duty of care towards the plaintiff (Defendant’s duty to take
care towards the plaintiff).
That the defendant committed a breach of such duty (Breach of duty by the defendant);
and
That the plaintiff suffered damage as a consequence thereof (i.e. proximate damage).
Defendant’s duty of care towards the plaintiff:- the plaintiff has to prove that the
defendant owed a duty of care towards him. This question came for discussion in the
following leading case:
Donoghue vs. Stevenson(1932)A.C. 562 : in the instant case Lord Atkin laid down the
principle of “neighbourhood” to decide the existence of such duty of care.
Breach of duty:- the plaintiff has to prove that the defendant committed a breach of
duty. Breach of duty means “non-observance of a duty or failure to take care”. Whether
the defendant had taken necessary care or not depends upon the following factors.
Importance or utility of act
Gravity of the risk
Cases of emergency
(Please give the above points in detail)
RES ISPSA LOQUITUR (IMPORTANT)
EXCEPTION TO THE RULE PROOF OF NEGLIGENCE
In an action for negligence, the plaintiff has to prove the breach of duty to take care on
the part of the defendant. But there are certain circumstances, in which the plaintiff will
succeed without proof of negligence on the part of the defendant. This exception is

enshrined in the latin maxim ‘res ipsa loquitor. It means the things speak s for itself:
According to Lord SHAW ,sometimes , a thing tells its owns story. The defendant may
be presumed to be negligent without which the accident would not happen.
Byrne vs. Boddle (1863)
Municipal Corp. of Delhi vs. Subhagwanti(1966)
DEFECES:
Act of god
Inevitable accident
Contributory negligence
(Please prepare the above topic in detail because a separate question can come on this
topic).
CONTRIBUTORY NEGLIGENCE
It means an act of negligence in which both the defendant and the plaintiff are
contributors. That is both of them have equally contributed for the commission of a
negligent act.
Butterfield vs. FORESTERS
TRESPASS
TRESPASS TO PERSON
Assault

An act which causes another person to apprehend the infliction of immediate, unlawful
force on is person (Collins v Wilcock [1984]).
Applies where dft directly or indirectly causes the plf to apprehend contact. Belief of
contact must be reasonable. Must be mental impact on plf. Words can of themselves
constitute an assault, but mere insults are not enough.
Collins v Wilcock [1984
Authority for the proposition that an act which causes another person to apprehend the
infliction of immediate, unlawful force on is person.
Battery
The actual intended use of physical force to another person without his consent … or
any other lawful excuse (AG Reference [1981])
Direct or indirect (upturning of chair while sitting on it) contact with a person without
consent or lawful authority. Force or physical injury is not required but there must be
some form of contact, although it can be slight such as spitting or lightly touching.
Traditionally a battery was considered to be an intentional touching of a harmful,
hostile, malicious or offensive nature to which no consent or authority had been given
either orally or verbally. Requirement of proof of hostility or malice has been
abandoned by the courts: Re F [1990]: unreasonable limitation on battery action. Prank,
over-friendly slap on back, surgery where mistake re consent – no hostile element but
may not be lawful.
Often against employees such as security guards, bouncers etc. Employee must show he
acted proportionately and with minimal force and may justify as self-defence of defence
of property. Is disproportionate or excessive: battery. In general it will be held that
employee is acting outside the scope of his employment if excessive force is used and
therefore the employer is not vicariously liable.

aGibbons v Securicor [2004]: Court found that:
- An occupier can withdraw a person’s licence to be present & individual commits
trespass if refuses to leave.
- A degree of force may be used to remove a person from the premises where they are
trespassing.
- If a person assaults or batters another or attempts to, that other person can use
reasonable force to defend themselves.
Victim of child sexual or violent abuse may sue in trespass. Statute of Limitations
(Amendment) Act 2000: postpones operation of 6 year limitation where plf suffered
significant psychological injury as result of earlier abuse. Delahunty for vicarious.
False Imprisonment
The unlawful restraint or detention of the plf.
Essential element is the unlawful detention of the person, or the unlawful restraint on
his liberty. Does not need to be actually aware that being falsely imprisoned. May be
imprisonment without walls – detention must only be such as to limit the party’s
freedom of movement in all directions. - Dullughan v Hillen [1957].
Blocking one means of exit will not suffice if plf has reasonable means of escape (not
dangerous or where plf was not aware of Meering v Graham White Aviation). Bird v
Jones: Hammersmith Bridge, refused to use alternative – not false imprisonment.
Vicarious liability where tort was committed in course or scope of employment and if
acts excessive, courts must determine whether authorized by employer. Dillon v Dunnes
Stores [1968]

TRESPASS TO LAND
Trespass to land occurs where a person directly enters upon another's land
without permission, or remains upon the land, or places or projects any object upon the
land.
This tort is actionable per se without the need to prove damage.
By contrast, nuisance is an indirect interference with another's use and enjoyment of
land, and normally requires proof of damage to be actionable.
WAYS IN WHICH TRESPASS MAY OCCUR
Entering upon land
Walking onto land without permission, or refusing to leave when permission has been
withdrawn, or throwing objects onto land are all example of trespass to land. For
example, see Basely v Clarkson (1681) 3 Lev 37, below. This tort developed to protect
a person's possession of land, and so only a person who has exclusive possession of
land may sue.
Thus, a landlord of leased premises does not have exclusive possession, nor does a
lodger or a licensee. However, a tenant or subtenant does.
CONTINUING TRESPASS
A continuing trespass is a failure to remove an object (or the defendant in person)
unlawfully placed on land. It will lead to a new cause of action each day for as long as it
lasts (Holmes v Wilson and others (1839) 10 A&E 503; Konskier v Goodman Ltd
[1928] 1 KB 421).

For example, in Holmes v Wilson and others (1839) the Ds built supports for a road on
P's land. The Ds paid damages for the trespass, but were held liable again in a further
action for failing to remove the buttresses.
MISTAKEN OR NEGLIGENT ENTRY
Trespass to land is an intentional tort. However, intention for the act is required, not an
intention to trespass. Consequently, deliberate entry is required and lack of knowledge
as to trespass will not be a defence (Conway v George Wimpey & Co [1951] 2 KB 266,
273).
Mistaken entry (Basely v Clarkson (1681) 3 Lev 37)
In Basely v Clarkson (1681) 3 Lev 37, the D owned land adjoining P's, and in mowing
his own land he involuntarily and by mistake mowed down some grass on the land of P.
P had judgment for 2s.
Involuntary entry (Smith v Stone (1647) Sty 65)
An involuntary trespass is not actionable: Smith v Stone (1647) Sty 65, where D was
carried onto the land of P by force and violence of others; there was trespass by the
people who carried D onto the land, and not by D.
Negligent entry (League Against Cruel Sports v Scott.)
A negligent entry is possible and was considered in League Against Cruel Sports v
Scott. The Ps owned 23 unfenced areas of land. Staghounds used to enter the land in
pursuit of deer. The Ps sued the joint Masters of the Hounds for damages and sought an
injunction against further trespasses. Park J issued an injunction in respect of one area
restraining the defendants themselves, their servants or agents, or mounted followers,
from causing or permitting hounds to enter or cross the property. Damages for six
trespasses were awarded. The judge said:

"Where a master of staghounds takes out a pack of hounds and deliberately sets them in
pursuit of a stag or hind knowing that there is a real risk that in the pursuit hounds may
enter or cross prohibited land, the master will be liable for trespass if he intended to
cause the hounds to enter such land or if by his failure to exercise proper control over
them he causes them to enter such land."
Q. What are the aims and objects of the CPA, 1986?
Describe the constitution, functions and the procedure of District Forum under the
CPA. What are the provisions of appeal under the CPA and before which authority an
appeal lies against an order of an agency?
Explain the composition, jurisdiction, and powers of State Consumer Forum (State
Consumer Redressal Commission) under CPA.
Define and discuss the word "consumer" and "service" under CPA. Illustrate with cases.
Businesses, companies, shopkeepers, retailers, and sellers are all interested in
maximizing their profits. In doing so, very often they neglect the best interests of the
buyer. Many times, a buy gets a defective product, or a product that fails to perform as
promised. Besides losing money put in purchasing a product, some times, due to defects
in the product, the buyer is injured as well. In all such cases, there is a violation of a
legal right of the buyer and he is entitled to sue the seller. Before enactment of the
Consumer Protection Act, 1986, filing a civil suit for damages was the only option
available to an aggrieved buyer. However, such a suit is very expensive and time
consuming, because of which, buyers were not able to use this mechanism for relatively
smaller amounts. This gave a field day to the traders because making substandard
products or not delivering on promises was a cheap option to make quick money, after

all, very few buyers would go to court. A common man was completely helpless
because of no control and penalty over unscrupulous sellers.
In this background, the CPA 1986 gave power in the hands of the buyer by allowing an
easier and cheaper way to redress their grievances, thereby holding the sellers
accountable for their actions more often. It provides redress to a consumer when the
purchased product is defective or when there is a deficiency in service. The following
are aims and objectives of this act -
1.The most important objective of this act is to provide a fast and cheap way for
consumers to hold the sellers accountable for their products or services.
Justice to consumers.
Protection of consumers from fraudsters or companies selling substandard products and
services.
Penalty to sellers for substandard product or service.
Check on sellers and service providers.
Besides the above objectives, Section 6 of CPA 1986 also provides certain rights as
objectives to the consumers. These are -
Right to be protected against goods that are hazardous or dangerous to life and property.
Right to be informed about the quality, quantity, potency, purity, standard and price or a
product and service.
Right to competitive pricing.

Right to be heard and to be assured that consumer interest will receive due
consideration at appropriate forum.
Right to redressal against unfair trade practices and exploitation of consumers.
Right to consumer education.
It is a complete code in the sense that it provides complete details of the constitution
and jurisdiction of the commission and procedure for filing the complaint and appealing
the decision. It does not depend on CPC and the cases can be finalized completely
under this act. In fact, as held in Ansal Properties vs Chandra Bhan Kohli 1991,
Consumer Disputes Redressal Agencies provide complete machinery for justice
including a final appeal to the Supreme Court and so are outside the scope of High
Courts and HCs can't entertain writ petitions against their judgments.
Under Section 9 of this act, three agencies are established to hear consumer complaints
-
A Consumer Disputes Redressal Forum in each district (For amounts up to 20 Lakhs)
A Consumer Disputes Redressal Commission in each state. (For amounts from 20
Lakhs to 1 Cr)
A National Consumer Disputes Redressal Commission in the center. (For amounts
above 1 cr)
District Forum
Composition (Section 10)
1. Each District Forum shall consist of -

A person who is, or who has been or is qualified to be, a District Judge, who shall be its
President
two other members, one of whom shall be a woman, who shall have the following
qualifications, namely -
be not less than thirty-five years of age,
posses a bachelor's degree from a recognized university,
be persons of ability, integrity and standing,
and have adequate knowledge and experience of at least ten years in dealing with
problems relating to economics, law, commerce, accountancy, industry, public affairs,
or administration
1-A. Every appointment under sub-section (1) shall be made by the State Government
on the recommendation of selection Committee consisting of the following namely:
The President of the State Commission - Chairman,
Secretary, Law Department of the State - Member,
Secretary, in charge, of the Department dealing with Consumer affairs in the State -
Member.
2. Every member of the District Forum shall hold office for a term of five years or up to
the age of sixty-five years/ whichever is earlier:
3. The salary or honorarium and other allowances payable to, and the other terms and
conditions of service of the members of the District Forum shall be such as may be
prescribed by the State Government.

Jurisdiction (Section 11)
Pecuniary Jurisdiction - Subject to other provisions of this Act, the District Forum shall
have jurisdiction to entertain complaints where the value of the goods or services and
the Compensation if any, claimed does not exceed rupees twenty lakhs.
Territorial Jurisdiction - A complaint shall be instituted in a District Forum within the
local limits of whose jurisdiction, -
The opposite party or each of the opposite parties, where there are more than one, at the
time of the institution of the complaint, actually and voluntarily resides or carries on
business or has a branch office, or] personally works for gain or
Any of the opposite parties where there are more then one, at the time of the institution
of the complaint, actually and voluntarily resides, or carries on business or has a branch
office, or personally works for gain, provided that in such case either the permission of
the District Forum is given, or the opposite parties who do not reside, or carry on
business or have a branch office, or personally works for gain, as the case may be,
acquiesce in such institution; or
The cause of action, wholly or in part arises.
For a complaint to lie in a district forum, at least a part of the transaction of the actual
business must have occurred in that district. In National Insurance Co vs Sonic Surgical
2003, a fire accident took place in Ambala and a part of the claim was partly processed
in Chandigarh. It was held that merely processing of claim in one place does not form a
ground to file a case in that district.
Functioning of a District Forum

Who can file a complaint (Section 12)
The following can file a complaint -
The consumer to whom the goods or services have been sold or are agreed to be sold.
Any recognized consumer association even if the consumer is not a member of the
association. Recognized means any voluntary association registered under Companies
Act 1956 or any other law for the time being in force.
One or more consumers, where there are numerous consumers all having same interest,
with the permission of district forum.
The state or central government.
The complaint must be accompanied with such amount of fee and payable in such
manner as may be prescribed.
The forum may accept or reject the complaint. The complainant must be given an
opportunity to be heard before rejection. The acceptance or rejection will be decided in
21 days.
Procedure on admission of complaint (Section 13)
Upon acceptance of the complaint, the forum will send a copy to the opposite party
within 21 days, who has to respond with his version of the complaint within 30 days
(extendable by 15 days). Upon receipt of the response, the forum will give its decision.
If no response is received, the forum will give and ex parte decision. An effort will be
made by the forum to make a decision within 3 months of date of receipt of notice by
the opposite party where no goods testing needs to be done or within 5 months
otherwise.
Powers (Findings) of District Forum (Section 14)
If, after conducting the procedure in Section 13, the forum finds that there was a defect

in the product or a deficiency in service or that any of the allegations in the complaint
are true, it can ask the opposite party to do any of the following -
-to remove the defect pointed out by an appropriate laboratory from the goods in
questions.
-to replace the goods with new goods of similar description which shall be free from
any defect.
-to return to the complainant the price or as the case may be, the charges paid by the
complainant.
-to pay such amount as may be awarded by it as compensation to the consumer for any
loss or injury suffered by the consumer due to the negligence of the opposite party.
-to discontinue the unfair trade practice or restrictive trade practice or not to repeat it.
-not to offer the hazardous product for sale.
-to cease manufacture of hazardous goods and to desist from offering services that are
hazardous.
-when injury has been suffered by may customer who are not easily identifiable, the
opposite party may be required to pay such sum as the forum deems fit.
-to issue any corrective advertisement to neutralize the effect of any misleading
advertisement.
-to provide adequate costs to parties.
The District Forum also has the power to grant punitive damages in such circumstances
as it deems fit.
The forum must take into account all the evidence and the documents produced by the
parties and the order of the forum should be a speaking order, which means that it
should detail the reasons behind the order. In K S Sidhu vs Senior Executive Engineer

2001, the complaint was dismissed by the District Forum by a non speaking order. It did
not discuss the evidence or the documents submitted before it and thus it was held that
the order was unjust and fit to be set aside.
Provisions for Appeal (Section 15)
From District Forum to State Commission (Section 15)
Any person aggrieved by an order by the District Forum may prefer an appeal against
such order to the State Commission within a period of 30 days from the date of the
order. The state commission may entertain an appeal after the expiry of the said period
of 30 days if it is satisfied that there was sufficient cause for not filing it with in that
period. With the appeal, the appellant must deposit 50% of the amount that he is
required to pay or 25000/- (whichever is less).
From State Commission to National Commission (Section 19)
Any person aggrieved by an order by the State Commission may prefer an appeal
against such order to the National Commission within a period of 30 days from the date
of the order. The commission may entertain an appeal after the expiry of the said period
of 30 days if it is satisfied that there was sufficient cause for not filing it with in that
period. With the appeal, the appellant must deposit 50% of the amount that he is
required to pay or 35000/- (whichever is less).
As per section 19-A, appeal to the State Commission or the National Commission shall
be heard as expeditiously as possible and an effort shall be made to dispose off the
appeal within a period of 90 days from the date of admission. If the appeal is disposed
of after this time, the commission shall state the reasons for the delay.
From National Commission to Supreme Court(Section 23)
Any person aggrieved by an order made by the National Commission in exercise of its
power conferred by sub-clause (i) of clause (a) of section 21, may prefer an appeal

against such order to the Supreme Court within a period of thirty days from the date of
the order. Provided that the Supreme Court may entertain an appeal after the expiry of
the said period of thirty days if it is satisfied that there was sufficient cause for not filing
it within that period. Provided Further that no appeal by a person who is required to pay
any amount in terms of an order of the National Commission shall be entertained by the
Supreme Court unless that person had deposited in the prescribed manner fifty per cent.
of that amount or rupees fifty thousand, whichever is less.]
State Commission
1. Each State Commission shall consist of -
a. a person who is or has been a Judge of a High Court, appointed by the State
Government, who shall be its President :
Provided that no appointment under this clause shall be made except after
consultation with the Chief Justice of the High Court;
b. two other members, who shall be persons of ability, integrity and standing and
have adequate knowledge or experience of, or have shown capacity in dealing with
problems relating to economics, law, commerce, accountancy, industry, public affairs or
administration, one of whom shall be a woman :
Provided that every appointment made under this clause shall be made by the
State Government on the recommendation of a selection committee consisting of the
following, namely :-
(i) President of the State Commission - Chairman,
(ii) Secretary of the Law Department of the State - Member,
(iii) Secretary, in charge of Department dealing with consumer affairs in
the State - Member.

2. The salary or honorarium and other allowances payable to, and the other terms and
conditions of service of the members of the State Commission shall be such as may be
prescribed by the State Government.
3. Every member of the State Commission shall hold office for a term of five years or
up to the age of sixty-seven years, whichever is earlier and shall not be eligible for re-
appointment.
4. Notwithstanding anything contained in sub-section (3), a person appointed as a
President or as a member before the commencement of the Consumer Protection
(Amendment) Act, 1993, shall continue to hold such office as President or member, as
the case may be, till the completion ] of his term.
Pecuniary Jurisdiction - Subject to other provisions of this Act, the State Commission
shall have jurisdiction to entertain complaints where the value of the goods or services
and the Compensation, if any, claimed exceeds rupees 20 lakhs but does not exceed
rupees 1 crore.
Territorial Jurisdiction - It can entertain appeals against the orders of any District Forum
of the state.
As per section 17 A , on the application of the complainant or of its own motion, the
State Commission may, at any stage of the proceeding, transfer any complaint pending
before the District Forum to another District Forum within the State if the interest of
justice so requires.
Procedure (Section 18)

The provisions of sections 12, 13 and 14 and the rules made there under for the
disposal of complaints by the District Forum shall, with such modifications as may be
necessary, be applicable to the disposal of disputes by the State Commission.
National Commission
1. The National Commission shall consist of-
a. a person who is or has been a Judge of the Supreme Court, to be appointed by the
Central Government, who shall be its President
Provided that no appointment under this clause shall be made except after
consultation with the Chief Justice of India
b. not less than four, and not more than such number of members, as may be
prescribed, and one of whom shall be a woman, who shall have the following
qualifications, namely:-
(i) be not less than thirty-five years of age;
(ii) possess a bachelor's degree from a recognized university; and
(iii) be persons of ability, integrity and standing and have adequate knowledge
and experience of at least ten years in dealing with problems relating to economics, law,
commerce, accountancy, industry, public affairs or administration:
Provided that not more than fifty per cent, of the members shall be from amongst the
persons having a judicial background
Provided also that every appointment under this clause shall be made by I. Central
Government on the recommendation of a Selection Committee consisting the following,
namely:-

(a) a person who is a Judge of the Supreme Court, to be nominated by the Chief
Justice of India - Chairman:
(b) the Secretary in the Department of Legal Affairs in the Government of India -
Member;
(c) Secretary of the Department dealing with consumer affairs in the Government of
India - Member;
Subject to the other provisions of this Act, the National Commission shall have
jurisdiction -
(a) to entertain -
(i) complaints where the value of the goods or services and compensation, if
any, claimed exceeds rupees twenty lakhs; and
(ii) appeals against the orders of any State Commission; and
(b) to call for the records and pass appropriate orders in any consumer dispute which
is pending before or has been decided by any State Commission where it appears to the
National Commission that such State Commission has exercised a jurisdiction not
vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the
exercise of its jurisdiction illegally or with material irregularity.
Power and Procedure (Section 22)
The National Commission shall, in the disposal of any complaints or any proceedings
before it, have -
(a) the powers of a civil court as specified in sub-sections (4), (5) and (6) of section
13;

(b) the power to issue an order to the opposite party directing, him to do any one or
more of the things referred to in clauses (a) to (i) of sub-section (1) of section14, and
follow such procedure as may be prescribed by the Central Government.
Section 22A. Power to set aside ex parte orders - Where an order is passed by the
National Commission ex parte against the Opposite party or a complainant, as the case
may be, the aggrieved party may apply to the Commission to set aside the said order in
the interest of justice.
Section 22B. Transfer of cases - On the application of the complainant or of its own
motion, the National Commission may, at any stage of the proceeding, in the interest of
justice, transfer any complaint pending before the District Forum of one State to a
District Forum of another State or before one State Commission to another State
Commission
Who is Consumer?
As per Section 2 (1) (d) of CPA 1986 - "Consumer" means any person who, -
(i) Buys any goods for a consideration which has been paid or promised or partly
paid and partly promised, or under any system of deferred payment and includes any
user of such goods other than the person who buys such goods for consideration paid or
promised or partly paid or partly promised or under any system of deferred payment
when such use is made with the approval of such person but does not include a person
who obtains such goods for resale or for any commercial purpose; or
(ii) Hires or avails of any services for a consideration which has been paid or
promised or partly paid and partly promised, or under any system of deferred payment
and includes any beneficiary of such services other than the person who hires or avails
of the services for consideration paid or promised, or partly paid and partly promised, or
under any system of deferred payment, when such services are availed of with the
approval of the first mentioned person but does not include a person wo avails of such

services for any commercial purpose;
Based on this definition, the following are essential elements of a Consumer –
(important)
1. Buys goods or Hires Services - Physical products such as Car, TV, Utensils etc as
well as intangible services ranging from Hair Cutting Saloon to Banking etc. are both
valid purchases for being a consumer. The scope of services is quite wide and more and
more things are coming into its ambit slowly. For example, in the landmark case of
Indian Medical Association vs VP Shantha and others 1995, SC held that patients
treated by a medical professional is also a consumer of medical services and is covered
by CPA.
2. For consideration - To be a consumer, paying consideration is a must. However,
consideration may be an immediate payment or a promise of future payment in full or in
part. It can also be any arrangement of deferred payments. Further, unlike in Sale of
Goods Act, consideration need not only be in the form of money but transaction of
services, exchange or barter is also valid. In Motor Sales & Service vs Renji Sebastian
1991, the complainant booked a motor cycle to be delivered on a given date for a
consideration. His turn was ignored. The dealer was ordered to give him the motorcycle
for the price of that date and also 500/- as compensation.
3. For personal Use - The goods or service must be bought for personal use. Originally,
a person who bought a product or a service for commercial use was not considered a
consumer but after the amendment in 1993, use of such goods for making a livelihood
is accepted. Thus, a self employed person who buys a Photocopy machine for his own
shop is a consumer. However, goods must not be bought for resale.
In Anant Raj Agencies vs TELCO 1996, a company bought a car for personal use of a
director of the company. It was held that since the car was bought for personal use and

not for commercial use or for making a profit on a large scale, the company was a
consumer.
4. Use by the purchaser or any body else - It is not necessary that only the purchaser of
the goods or services be the user. Anybody who uses the goods or services with due
permission of the purchaser, is also a consumer. Thus, in a landmark case of Spring
Meadows Hospital vs Harjot Ahluwalia AIR 1998, SC held that the parents of the child
who was treated by the hospital were hirers of the service while the child was the
beneficiary and thus both were consumers.
What is a Service?
As per Section 2 (1) (o) "Services" means service of any description which is made
available to potential users and includes, but not limited to, the provision of facilities in
connection with banking, Financing insurance, transport, processing, supply of
electrical or other energy, board or lodging or both, housing construction entertainment,
amusement or the purveying of news or other information, but does not include the
rendering of any service free of charge or under a contract of personal service;
Based on this definition, the scope of services is quite wide. It will not be an
exaggeration to says that any thing for which a customer pays and that is not a physical
product is a service. Cinema halls, Health clubs, University, College, are all service
providers.
In the landmark case of Indian Medical Association vs VP Shantha and others 1995, SC
held that patients treated by a medical professional is also a consumer of medical
services and is covered by CPA.
In Union of India vs Mrs S Prakash 1991, Telephone facility was held as a service and
the telephone rental paid by the consumer was the consideration for the service.

The service must be a paid service. Free or non-profit services do not fall under this
category and claims cannot be made regarding such services under the CPA. In A
Srinivas Murthy vs Chairman, Bangalore Development Authority 1991, the question
before the court was whether a tax payer is a consumer or not. A person, who paid
house tax, was bitten by a stray dog and he sued Bangalore Development Authority for
not taking care of the menace of stray dogs. It was held that there was no quid pro quo
between the tax and the services rendered by BDA. The removal of stray dogs was a
voluntary action of BDA and was done free of cost. Thus, the complainant was not a
consumer and removal of dogs was not a service under this act.
Just like a defect, which renders a product not as useful as promised, there can be a
deficiency in service, which render a service not as useful as promised at the time of
sale. CPA 1986 allows consumers of services to take action against service providers
for compensating for the deficiency in the promised service.
As per section 2(1)(g), "Deficiency" means 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.
Thus, in Mahanagar Telephone Nigam vs Vinod Karkare 1991, when a complaint with
the telephone dept. was pending for more than six months, it was held to be a deficiency
in service.
In Indian Airlines vs S N Singh 1992, a metallic wire was present in the food given to a
traveler because of which his gums were hurt. He was awarded 2000 Rs as
compensation for deficiency in service.
please study the historical background of this act
Q. What are the Objects of consumer protection Act, 1986?

Ans.: The law relating to consumer protection is contained in the consumer protection
Act, 1986. The act applies to all goods and services. The central government however
by notification published in the Official Gazette exempts any goods or Services.
Objects of the Act: The following are the objectives of Consumer Protection Act, 1986.
They are follows:-
1. Better Protection of Consumers: The act seeks to provide for the better protection of
the interest of consumers and for that purpose, makes a provision for the establishment
of consumer councils and other authorities for settlement of consumer disputes and for
matters connected therewith.
2. Protection of rights of consumers: The Act, seeks to promote and protect the rights of
consumers such as:-
a) The consumer has the right to be protected against marketing of goods and services
which are hazardous to life and property.
b) They have the right to be informed about the quality, quantity, potency, purity,
standard and price of goods or services so as to protect the consumers against the unfair
trade practices.
c) The consumers also have the right to seek redressal against the unfair trade practices
or restrictive trade practices of exploitation of the consumers. And
d) The consumer has Right of education.
3. Consumer protection Councils: The objectives of Consumer protection Act, 1986, are
sought to be promoted and protected by the Consumer Protection Councils established
at the central and State levels.

4. Quasi-Judicial machinery for speedy redressal of consumer disputes: The Act also
seeks to provide speedy and simple redressal to consumer disputes. For this purpose,
there has been set up quasi-judicial machinery at the district, state and central levels.
These quasi-judicial bodies are supposed to give reliefs of a specific nature, and also
provide compensation to consumers whenever appropriate.
Q. Write a short note on Consumer Disputes Redressal Agencies?
Ans.: Establishment of Consumer Disputes Redressal Agencies: (Section 9)
Consumer Disputes Redressal Agencies have been established according to the section
9-27 under chapter III, of the consumer protection Act, 1986. According to section 9,
they have been established for the purpose of providing justice to the consumers. It can
be established as agencies, they are follows:-
1. Consumer Disputes Redressal Forum: A consumer disputes redressal forum is also
called as ‘District Forum’ established by the state government in each district of the
state by notification. The state Government may, if it deems fit, establish more than one
District forum in a district. It has jurisdiction to entertain complaints where the value of
the goods or services and the compensations claimed does not exceed Rs. 5 lakh.
2. Consumer Disputes Redressal Commission: Consumer Disputes Redressal
Commission it is also known as the ‘State commission’ established by the state
government in the state by notification. It has jurisdiction to entertain complaints where
the value of the goods (or) services and compensation claimed exceeds 5 lakhs but does
not exceed Rs. 20 lakhs.
3. National Consumer Dispute Redressal Commission: National Consumer Dispute

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