Law of torts

Ans: In Cheema Engg. Service  v Rajan Singh (1997) 1 SCC 131, (1997) .  The respondent purchased a machine ('Brickman') from the appellant for brick-moulding/ drying/burning and thus to produce bricks. The machine turned out to be defective, the appellant refused to rectify/replace it. The respondent moved the consumer court and claimed damages. The appellant opposed his complaint on the ground that as the machine was to be used for *commercial purpose', he was not a 'consumer' within the meaning of Sec. 2(1)(d)(i) (exception clause). The respondent contended that his case is covered by Explanation to Sec. 2(1)(d). The Supreme Court observed: The word "self-employment" is not defined under the Consumer Protection Act. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regul...

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...

Ans: Every man has the right to deserve protection of his life and personality and the others obligation is to protect others right. But sometimes the right is infringed. Every person has the right to movement in the territory of India and no other person has the right to restrain his movement. False imprisonment is the total restraint of the liberty of a person for however , short a time , without lawful excuse. If a person is restraining the rights of another person to move freely,  he will be liable for the tort of wrongful imprisonment.  Definition of wrongful imprisonment is defined by the author Winfield. Wrongful Imprisonment is the infliction of bodily restraint,  not expressly or implied by the law. According to Lindshell and Clerk , the complete deprivation of liberty for any time however short, without lawful cause. If a person locks anyone in a room without any reason, the person will be liable for the tort of wrongful imprisonment.

Ans: Every man has the right to deserve protection of his life and personality and the other's obligation is to protect others right. But sometimes the right is infringed.  Sometimes it happens some wrong with a person , which we can say trespass to person. Among all the personal injuries,  the most dangerous injury is called Mahyem. Mahyem means the injuries causing no death of an individual is called Mahyem. When there is an injury to the fighting limb of the person is called Mahyem. Where it is not a fighting limb , the action would not be for Mahyem but battery. E.g., Loss of teeth, hands, feet, fingers would give rise to Mahyem. The cutting of ears and nose would amount to disfigurement and not the loss of fighting limb , therefore it is battery only. The fighting limbs are those parts which a person can use for fighting. 

And: Essential Element of battery are as follows:  1. Use of force : Even though the force used by the person may be very simple and does not constitute or cause any harm , wrong of battery is still committed. Physical hurt need not be there. E.g. Use of stick,  spitting on a mans face . Making a person fall down by pulling chair. Slapping,  Stabbing , throwing water over a person. Poisoning. 2. Without Lawful Justification: It is essential that the use of force will be intentional and not without any lawful justification. Following acts are not held to be battery: 1. To feed the hunger striker forcibly to save his life. 2. Performance of an operation on an unconscious person by a doctor. 3. Police man arrest a person by applying a force. 

Ans: In tort of assault,  it is not necessary to touch the body of another person.  Battery is actual striking of another person or touching him in rude, angry and revengeful manner. Battery is the actual and intentional application of any physical force of an adverse nature to the person of another without his consent. Section 350 of IPC mentions about the use of criminal force. Battery means nothing but touching another person hostilely or against his will , however slightly.

Ans:  Assault is recognized in not only in law of tort but in criminal law also. Section 351 of IPC deals with assault. Assault is the act of defendent and such execution causes  reasonable apprehension of the infliction of battery on him by the defendent.  If there is a trepidation in the mind of person that another person would inflict battery on him , it will be termed as assault. In simple words, assault is the act of person which creates fear and apprehension in the mind of another person. Whoever makes any gesture or any preparation intending or knowing it to be likely that such gesture or preparation is about to use criminal force to that person is said to commit an assault. For instance: If a person has a gun and he is threatening that he will kill another person , the tort of assault will be completed.

Ans: Every person has the right to protect his life under Article 21 of Indian Constitution.  But sometimes,  this right is infringed.   Sometimes it happens wrong with a person which we can say trespass to a person.  Assault is recognized in not only in law of tort but in criminal law also.

Ans: A trespass to a person is wrong against a person.   The three chief forms of Intentional trespass are Assault, Battery and False Imprisonment. 

Ans: The trespass to goods takes place if some one takes away the goods of another without permission or damages the another person’s goods . An action for trespass to goods shall also lie for taking or injuring domiciled or tame animals. If the animals are taken away without permission or the animals ' of another person were injured,  it is also trespass to goods. Examples of trespass to goods: 1. Throwing stone on the car 2. Shooting Birds 3. Beating animals 4. Chasing animals to make them run away from their owners possession. For instance: Removing of tire , giving poisoned food to animals.

  Ans: Essentials of trespass to goods: 1. It is a wrong against possession. 2. Any person whose possession of goods is directly interfered with can bring this action. But when owner has given up his possession i.e., by pledging the goods or giving them to another under hire and purchase agreement,  such right can not be exercised. 3. Trespass is a wrong against possession rather than ownership.   There is a case of Armory Vs. Delamire, 1722 in which the sweeper boy found the jewellery and the sweeper handed over the jewellery to the Jeweller. Since the sweeper found the jewellery,  thus sweeper has the possession of the jewellery. The Jeweller denied to return the jewellery to sweeper.  The sweeper filed case that the Jeweller had made wrong against possession and the Jeweller was held liable for trespass to goods.  4. Direct interference: There must be direct physical interference without lawful justification in trespass.  For instanc...

Ans: Ways of trespass to land are as follows :  1. Trespass by wrongful entry : Any wrongful entry without permission is trespass by wrongful entry. 2. Trespass by remaining on the land : If a person gets the license to enter into the land and if the license expires and the person enters into the land after the expiry of license, it will be considered in trespass by remaining on the land. 3. Trespass by placing things on the land: 1. Driving a nail 2. Pouring water  3. Throwing a stone 4. Trespass by animal

Ans: Tresspass to land : The expression tresspass to land or immovable property literally means unauthorized interference with possession or enjoyment of land of another. In tresspass, the interference with the possession is direct. If the interference is not direct but consequential the wrong may be a nuisance. Tresspass could be committed either by person himself entering the land of another or doing the same through some material object. Tresspass to land is an unwarranted or unauthorized entry upon the land of another or any direct or immediate act of interference with the possession of land. For instance: Throwing of stone on another’s land is tresspass and putting ladder on someone's land is also a tresspass.

  Ans: There are two kinds of trespass: Trespass quare olasum fregit– this means the entry on another person’s land. Trespass de bonis asportatis– this means the taking away of another person’s goods.

Ans: Trespass means to enter someone's land or property without the permission of that person. In Trespass,  there will be a direct invasion or interference with another person's property which infringes the rights of another person. There are two kinds of trespass based on legal maxims: 1. There is a legal maxim 'Trespass quare olasum fregit' which means the entry on another person’s land. Here the entry on another person's land is without his permission. 2. There is another legal maxim ' Trespass de bonis asportatis' which means the taking away of another person’s goods' . Here , the taking away of another person’s goods is also without the permission of that person.  If the injury is not inflicted intentionally but negligently, the only cause of action is negligence and not trespass and thus the punishment can not be inflicted in accordance with tort of tresspass and the punishment will be inflicted as per the provisions of  tort of negligence.  Thus ...

Ans: Trespass,  is the direct physical interference with the plaintiff’s possession of the property through some material or tangible object whereas, in the case of a nuisance, it is an injury to some right of the possession of the property but not the possession itself. Trespass is actionable per se (actions which do not require allegations or proof), whereas, in the case of a nuisance, only the proof of actual damage to the property is required and is per se actionable.  Simply entering on another individual’s property without the owner’s consent and without causing him any injury would be trespass whereas if there is an injury to the property of another or any interference with his enjoyment of the property, then it will amount to a nuisance. It is to be noted that if the interference with the use of the property is direct, then the wrong is trespass whereas if the interference with the use or enjoyment of the property is consequential then it will amount to a nuisance. Exa...

Ans: The question that arises in punishment of defamation is whether liability arising out of defamation is a violation of the right to freedom of speech and expression in accordance with Article 19(1)(a) of Indian constitution. As we know that there is no specific fundamental right to privacy, the judicial interpretation includes it as a dimension of the right to life and liberty guaranteed under Article 21 of the Constitution. So the right to reputation also comes in the ambit of Article 21. In the case of Subramanian Swamy v. Union of India, a petition regarding the decriminalization of defamation was filed. The petition challenged the constitutional validity of Section 499 and 500 of the Indian Penal Code, 1860 is an unreasonable restriction on the freedom of speech and expression. The apex court held that criminal defamation under Section 499 and 500 did not violate Art. 19(1)(a) as it is a reasonable restriction under Art. 19(2).  Reasonable restrictions' as outlined in Artic...

Ans:  1. Defamation as a tort is a civil wrong whereas Defamation as a crime is a criminal offence which is bailable, non-cognizable and compoundable. 2. Defamation as a tort is based on tort law and it is such area of law which has no statutes to define wrongs. Defamation as a tort relies completely on case laws to define wrongs.   Defamation as a crime has been defined as an offence under Section 499 of IPC and the punishment for the same is mentioned in Section 500 of the Indian Penal Code, 1860. 3. Defamation as a tort furnishes redressal or solution to the plaintiff by awarding damages to the plaintiff in the form of monetary compensation and is given by an accused. The purpose of legal action against defamation as a crime is not monetary compensation and in criminal defamation,  the objective is to punish the offender and send a message to the society not to commit such an offence. In Section 500 of IPC , the punishment for defamation is imprisonment upto ...

 Ans:  1. Libel is directed towards the eyes whereas Slander is directed directly to the ears. 2. Libel is the  defamatory statement which is made in  in obvious manner, such as by writing, printing, images, as well as effigies. The defamatory statement is expressed verbally or by another medium, whether visual or auditory, such as gestures, hissing, and other means. 3. It is both a criminal offence and a tort actionable  per se. Slander is just a civil wrong and not a crime except in certain cases. 4. Libel is actionable per se and can be enforced without evidence of actual damage. Slander can only be enforced by giving the evidence of actual damage per se actionable. 

Ans: Each guy has a right to defend his reputation because it is thought of as valuable property. This right is recognised as an individual's personal right and as a jus in rem, or a right that is valid against everyone in the globe. Any spoken or written statement that hurts another person's reputation is referred to as defamation. Defamation is defined as "the offence of injuring a person's character, fame, or reputation by false and malicious statements" in accordance with Black's Law Dictionary. It will be termed as "libel" if the statement is written down and published. A "slander" is a defamatory statement that is spoken.

Ans: Any statement or communication that damages a person's, a company's, or an organization's reputation is referred to as defamation in law. It is a typical form of tort law that guards against fraudulent or damaging claims that could suffer economy or destroy their reputation.

Ans: The theory of sovereign functions and non sovereign functions is placed in state liability tort because it is a tort of vicarious liability. If there is a case of tort of state against fundamental rights, res ispa loquitur occurs and the burden of proof shifts from plaintiff to defendent and defendent will have to prove that he was not negligent. Res ispa loquitur means the things speak in itself. Res ispa loquitur is based on negligence per se i.e., negligence in itself. In case of composite negligence in liability of state in tort, the doctrine of res ispa loquitur occurs and the burden of proof shifts to defendent.  Generally in  tort of negligence, the burden of proof shifts to defendent whether it is intentional tort while in intentional tort and no fault tort, the burden of proof is not obligatorily shifted to defendent.  In tort of state liability,  the doctrine of  res ispa loquitur occurs and it will be the duty of state to prove that the act was p...

Ans: 1. Menaka Gandhi Vs. Union of India, 1978 The passport authority declined to give passport to menaka gandhi and case went in favour of menaka gandhi. 2. Rudul Shah V. State of Bihar, 1983. The accused completed the 14 years of punishment and he was dentented more than his period. A writ of habeas corpus was filed and the state had to give the compensation. 3. Saheli V. Commissioner of police, 1990. Child died in police custody due to torture and the state was liable to pay compensation. 4. Kumari V. State of Tamil Nadu, 1992 Child died by falling in uncovered water and the state was held liable to pay compensation. 5. Nilabati Behra Vs. State of Orissa, 1993. Nilabati behra's son Suman behra aged, 22 years died in police custody and the state was held liable to pay compensation. The prayer made in the petition is for award of compensation to the petitioner, the mother of Suman Behera, for contravention of the fundamental right to life guaranteed under Article 21...

Ans:  Kasturilal Ralia Ram Jain vs The State Of Uttar Pradesh on 29 September, 1964 The question of law which arises in this case is whether the respondent, the State of Uttar Pradesh, is liable to compensate the appellant, M/s. Kasturilal Ralia Ram Jain for the loss caused to it by the negligence of the police officers employed by the respondent. This question arises in this way. The appellant is a firm which deals in bullion and other goods at Amritsar. It was duly registered under the Indian Partnership Act. Ralia Ram was one of its partners. On the 20th September, 1947 Ralia Ram arrived at Meerut by the Frontier Mail about midnight. His object in going to Meerut was to sell gold, silver and other goods in the Meerut market. Whilst he was passing through the Chaupla Bazar with this object, he was taken into custody by three police constables. His belongings were then searched and he was taken to the Kotwali Police Station. He was detained in the police lock-up there and his belo...

Ans:  The State of Rajasthan v. Mst. Vidhyawati and another (1962). Lokumal i.e. Defendant no. 1, a temporary employee of the State of Rajasthan was employed as a motor driver (on probation) of a government jeep car under the Collector of Udaipur. The car had been sent for repairs. On February 11, 1952, while driving the car back from the workshop after the repairs were done, defendant no. 1 knocked down one Jagdishlal, who was walking on the footpath by the side of the public road. Jagdishlal was severely injured and his skull and backbone were fractured. Three days later, he died in the hospital.  The court held that the state will be liable to pay compensation for the Tort of his employee.

Ans: Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India, 1861 . Few workers were crossing the road while rod in their hands. They listened the sound of horses and got scared . They dropped the rod on the road and walked away.  The horses met with an accident due to rod and died on the spot. The company put a case against secretary of India and it was held that the secretary of India would be liable for the negligence of his workers.

Ans: Government is liable for torts in non sovereign functions whereas government will not be liable for torts in case of sovereign functions. The objective of non sovereign functions is to earn profit and thus government is liable for tort in non sovereign functions. 

Ans: The non sovereign functions of government are as follows:  Road Transport  Construction  Trade 

Ans: The Sovereign functions of Government are as follows : 1. Defense of the country  2. Raising and maintaining armed forces  3. Making peace or war  4. Foreign Affairs  5. Acquiring and maintaining territory

Ans: Article 300 of the Indian Constitution pertains to suits and proceedings by or against the Government of India or a state government. It states that the Government of India or a state government may sue or be sued in the name of the Union of India or the state, depending on the circumstances, and that any legal proceeding against the Government of India or a state government may be instituted in any court of law within the territory of India. Article 300 of the Indian constitution stipulates that no act or proceeding of the Government of India or a state government shall be called in question in any court on the ground that it is not an act or proceeding of the Government of India or the state government, as the case may be, unless the contrary is proved.

Ans: If students commit mistakes, teachers punish students. What if teacher commits mistakes ? If children commit mistakes , parents punish them. What if parents commit mistakes ? If a citizen of state commit mistakes,  the state would punish us. What if the state would make mistake ? This question yields the concept of tort of state liability.