Law of torts

Ans: In Kavita Kothari v Samriddhi Developers Pvt. Ltd. [7 Sept., 2016 (NC)], the complainant is a purchaser of the property being developed by the builder and landowners on the land provided by the landowners. The complainant sought to purchase two apartments from the builder for residential purpose. Holding that such purchase amounts to 'commercial purpose', the National Commission said: "It has not been explained anywhere as to why the complainant sought to purchase two residential flats. Had the complainant explained in detail that she wanted two flats for her own living, or for living of her close family members, it could have been construed that the purchase was not for a commercial purpose."

Ans: The Supreme Court has held in Indian Medical Association v V.P. Shantha (AIR 1996 SC 550) that the doctors and hospitals rendering service on payment basis to all persons, as well as those providing free medical service to some poor patients but rendering bulk of medical service to patients on payment basis would fall within the purview of the Act. However, doctors and hospitals rendering service without any charge except nominal registration charges would fall outside the purview of the said Act, and consequently, users of such service would not fall within the definition of 'consumer.' An important aspect of the above decision is that poor patients receiving free medical service from doctors and hospitals rendering bulk services on payment basis would yet be 'beneficiaries of service which is hired and availed of by the "paying class." We are therefore of the opinion that service rendered by the doctors and hospitals falling in category irrespective of the ...

Ans: A patient is a "consumer" and the medical assistance a "service" and thus the patients aggrieved by any deficiency in treatment from both private clinics and Government hospitals, are entitled to seek damages under the Consumer Protection Act (Indian Medical Assn. v V.P. Shantha). Service includes rendering of consultation, diagnosis and treatment, both medical and surgical. The reason that doctor's job is considered to be "service" is that nowadays doctors treat patients only in return of money, therefore wherever there is transaction of money taking place the relationship of the two persons involved becomes a relationship of seller and buyer, therefore,  the patient automatically becomes a consumer and the requirement to protect his rights and interest arises simultaneously. This is the reason that the consumer protection act came into being and the relationship of doctors patient was included in it.

Ans: A person who applies for allotment of a building site or for a flat constructed by the development authority or enters into an agreement with a builder or a contractor is a potential user and nature of transaction is covered in the expression 'service of any description.' A government or semi-government body or a local authority is as much amenable to the Consumer Act as any other private body rendering similar service. Truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions be scrutinized, as public accountability is necessary for healthy growth of society. The court thus held: "The provisions in the Acts, namely, Lucknow Development Act, Delhi Development Act or Bangalore Development Act clearly provide for preparing plan, development of land, and framing of scheme etc. Therefore if such authority undertakes to construct building or allot houses or building sites ...

Ans:  Faqir Chand Gulati vs Uppal Agencies Pvt. Ltd. & Anr on 10 July, 2008.  The agreement with a builder for construction of a residential building on the land provided by the landowner was not to be treated as joint venture and in such cases, the landowner would be a 'consumer', although he was to be delivered one apartment or more. In this case, the question was: Whether a land owner, who enters into an agreement with a builder, for construction of an Apartment Building and for sharing of the constructed area, is a 'consumer' entitled to maintain a complaint against the builder as a service- provider under the Consumer Protection Act, 1986, if the contractor commits any breach either by failing to deliver owner's share of constructed area or by constructing the building contrary to specifications, or by failing to fulfill the obligations relating to completion certificate or amenities like water, electricity and drainage. The State Commission held that the a...

Ans: Following are the essential elements of tort of wrongful imprisonment:  1. Intentional Confinement: Defendent act with Intention to confine or restraint plaintiff.  The defendent action must be intentional to confine or restrain plaintiff.  If the confinement by defendent is accidental, the defendant will not be liable for tort of wrongful imprisonment.  2. Total confinement: There is no other means to escape the plaintiff, the confinement is total confinement.  If there exists another means to escape the plaintiff,  the confinement is not total confinement and the confinement will be partial confinement. 3. Confinement must be without lawful justification. The restraint should be unlawful or without any justification. The confinement must be unlawful.  If it is lawful, it will  not make the defendant liable for wrongful imprisonment. For instance: If a thief enters into the house and the person locks and confine the thief which is for lawful...