of Torts-Part-II

Consumer Protection Act of 1986

1. Who is consumer? Explain the aims and objectives of the Consumer Protection Act of
1986.
2. Discuss briefly the rights of consumers.
3. Explain the concept of “Consumer” under Consumer under Consumer Protection Act of
1986.
4. Define the terms “consumer” and “services”. Explain the composition, powers and
functions of the District Forum.
5. Explain the terms complaint and complainant.
6. What are the objects of the Central Consumer Protection Council?

Synopsis:
1. Background.
2. Objectives.
3. Salient Features of Consumer Protection Act
4. Aims.
5. Who is a consumer and what is service?
6. Who is not a consumer?
7. What are the rights and responsibilities of the consumer?
8. Extent of protection of consumer.
9. Consumer Dispute.
10.Who can be a Complainant.
Scope of different complaints.
a. Unfair Trade practice.
b. Restrictive trade Practice.
c. Defects.
d. Deficiency.
e. Excessive price. District Forum
f. Hazardous Goods.
11. Consumer Protection Redressal Agencies. State Commission.

National Commission.

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BACKGROUND:-
 Consumer was neglected with the dominance of the Producer, Trader, Manufacturer
and Businessman.
 “Consumer is the King of market”, got statutory recognition in India, in 1986.
Consumer was dominated by the producer, trader, manufacturer and the
businessmen. Some people thought the consumer should tell his opinion, should get
consent.with respect the quality of the products.
 However redressal through Courts (Normal Court) was time consuming and costly
process, which resulted in “justice delayed is justice denied”.
 Need for statute for consumer protection was felt.
 United Nation passed a resolution in 1985 to have a law for protection of consumer
interests and rights and promote their responsibility.
 Consumer Protection Act was Enacted in 1986.
 Effective or came into force in 15th April 1987.
 Supplemented by Consumer Protection Act 1987.

Objective:-
 To protect Rights of consumers.
 To provide for better protection of interests of consumers and for that purpose to
make provisions for the establishments of consumer councils/forums. (For speedy
procedure).
 The main objective of the act is to seek to protect and promote the
consumers interest through speedy and inexpensive redressal of their
complaints and grievances.

The Salient Features of Consumer Protection Act are:-

1. Consumer Protection Act can provide redress to a consumer through a special set up
“set of courts”.
2. Need not engage a lawyer, and
3. Could expect a much quicker relief.
4. Further, no court fee had to be paid for filing a complaint, (but after the Consumer
Protection (Amendment) Act, of 2002 every complaint must be accompanied by such
amount of court fee as may be prescribed, which varies from case to case).

Aims of the Act:-

1. For speed disposal of the matter,
2. without appointing lawyer,
3. with nominal fees, and
4. to provide quicker relief.

Who is a Consumer?

Section 2(d) of the Consumer Protection Act says that consumer means any person who,
 Buys any “goods’ for a consideration.
 Hires * or avails of any “service” for consideration.
 “Uses the goods” with the approval of the person who has bought the goods for
consideration.
 “Is beneficiary of services” with the approval of the person who has hired the
services for consideration.
 By means of Self- employment, then such use would not be termed as use for
commercial purposes under the Act and the user is recognized as a consumer.
Ill:- A buys a truck for plying it as a public carrier by himself, A is a consumer.
But if A hire a driver then he is not a consumer.

Ex:- When I purchase some good, say a cycle, scooter, car, fan, shoes or gas
stove I may be the consumer of goods. Such purchases may be against the
Consideration which has been paid or promised to pay or partly payed and partly
promised to pay or under any system of deferred payment .

When I opt for some services like a bank Account, take an insurance policy, get
my car repaired or travel by cab, I could be the consumer of services.
__________________
*Hire is not defined under the Act but its Dictionary meaning is to procure the use of
services at a price, thus it is used in the sense of “avail” or “use”.
Who is not a Consumer?
 He who obtains the goods for resale or for any commercial purpose.
 Buys goods without consideration.
 Hires or avails of any services without the approval of the person who has bought
the goods for consideration.
 Is beneficiary of services without consent of the person who has hired the services
for considerations.
 He obtains service under a contract or personal service.
 He avails of services for any commercial purposes.
The above said person are not Consumer.

The Rights of the consumers:-

1. Right to information.
2. Right to choose.
3. Right to represent or heard.
4. Right to redressal.
5. Right to education.

1. Right to information:- It is right to be informed about the quality, quantity, potency,

purity, standard and price of goods and services, with a view to protect the consumer
against unfair trade practices. Adequate information is very important in order to
make a right choice. In our country, however, consumers do not get adequate
comparative information about the quality, quantity, potency, purity, standard and
price of different kinds of goods or services which are available. As a result, buying
decisions become difficult. Therefore consumers need to be given maximum
information about the wide variety of competing goods available in the market.
2. Right to Choose:- the right to choose can be made meaningful by ensuring access to
a variety of goods and services at competitive prices.
Fair and effective competition must be encouraged so as to provide consumers with
the widest range of products and services at the lowest cost.
3. Right to represent (right to hear):- It is right to be heard and to be heard and to
be assured that consumer’s interests will receive due consideration at appropriate
forums.
The Consumer Protection Act, 1986 has well taken care of this right by making
available the instrumentality or Redressal Forums. Every consumer has a right to file
complaint and be heard in that context.
4. Right to redressal:- It is a right to seek redressal against unfair trade practices and
restrictive trade practices or unserpulous exploitation of consumers. When consumers
are wronged in a market place transaction, appropriate and adequate redress must
be available. The Act has ensured this right by establishing Consumer Forums and
recognizing restrictive and unfair trade practices as a ground to make a complaint.
5. Right to education:- The right to consumer education is a right which ensures that
consumers are informed about the practices prevalent in the market and the
remedies available to them.
For spreading this education, media, or school curriculum, or cultural activities, etc.
may be used as a medium.
Note:- that the Central Council’s object is to ensure these rights of the consumers
throughout the country while State Councils look to ensure these right to consumers
within their territories.

Responsibilities of the consumer:-

1. Check various goods and services available in the market.
2. Before making transaction consumer should check ISI mark on Electrical Goods,
FPO mark on the Food Products like Gee, Oil and Hallmarks on Jewellery works in the
Market.
3. Study the risks associated with the products and services and follow manufacturers
instruction to use the product safely.
4. Read the labels carefully.
5. Be honest and fair in dealings.
6. Always ask for cash memo.
7. File a complaint with appropriate consumer forum in law shortcoming in the quality.

Extent of Consumer Protection.:-

Enshrines the rights of a consumer to be informed about the.
1. Quality, quantity, potency, price etc of goods.
2. Protection against unfair trade practices to seek inexpensive and redressal of
grievance. “In-expensive and speed justice”.

Consumer Dispute:-
A dispute where the person against whom the complaint has been made denies or
disputes the allegations contained in the complaint.

Complaint:-
An aggrieved consumer seeks redressal under the Act through the instrumentality of
complaint. It does not mean that the consumer can complain against his each and every
problem. The Act provides certain grounds on which complaint can be made.

Who can be a Complainant?

 A consumer.
 A registered Consumer Organization. ( any voluntary consumer association registered
under the Companies Act of 1956 or any other law for the time being in force ).
 Central Government or State Government.
 One or more consumer for and on behalf of other consumers similarly affected.

Scope of different complaints.

a. Unfair Trade practice.
b. Restrictive trade Practice.
c. Deficiency.
d. Defects.
e. Excessive price.
f. Hazardous Goods.

Unfair Trade Practice:-

 Is a trade practice which,
 For the purpose of promoting sale, use or supply of goods or for the provision of
any service.
 Adopts unfair method or unfair or deceptive.
 Including any of the following practices.

Restrictive Trade Practice:-

 It tends to bring about manipulation.
 It shall include.
1. Delay beyond the period agreed to by a trader in supply of goods or services
which has led to increase in price.
2. Any trade practice which require a consumer to buy, hire or avail of any
goods or service as condition precedent to buying.

Deficiency:-
 Any fault, imperfection, shot coming or inadequacy.
 In the quality, nature and manner of performance.
 Which is required to maintained by or under any law.
  Has been undertaken by a person to be performed.
 Otherwise in relation to any services.

Defects:-
 Any fault, imperfection or shortcoming.
 In the quality, quantity, potency, purity or standard.
 Which is required to be maintened by or under any law for time being in force.
 Under any contract express or implied.
 As is claimed by the trader in any manner what so ever in relation of any goods.
Excessive Price:-

A price is excess of the

1. Fixed by or under any law for the time being in force.
2. Displayed on the goods or any package containing such goods.
3. Displayed on the price list exhibited by him under existing law.

Hazardous Goods:-

1. Goods which are hazardous to life and safety.

2. Traders shall display information regarding the content, manner and effect of such
goods.

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ASSAULT AND BATTERY

1. Discuss assault and battery with the help of decided cases.
2. Short Notes:- Assault and Battery.
3. Define “Assault” and distinguish it from “Battery”. State the circumstances in
which they may be justified.
4. Explain Assault and Battery. Refer decided cases.
Synopsis:-
1. Introduction.
2. Definition.
i. Assault.
Essential Elements.
Decided Case Law.
 Innes vs. Wylie.
Stephens Vs. Myers
ii. Battery.
Essential elements.
Decided Case Law.
Innes vs. Wylie.
Stanley vs. Powell.
Cherubin Gregory vs. State of Bihar.
3. Differences between the Assault and Battery.
4. Defenses to an action for Assault and Battery.

Introduction:-
Assault and Battery, in most jurisdictions, is a crime committed, when.
a. When a person attempts to physically harm to another person, and
b. Acts in a way that causes the victim to fear that he will be harmed.
While assault and battery were traditionally classified as two very distinct crimes.
Modern law pair them together as an one offense.

-: ASSAULT:-
Assault, “is a reasonable apprehension in the mind of plaintiff of the infliction of
battery on him by the defendant”.

Essential Elements of Assault:-

1. There must be threat to apply force.
2. The act will put reasonable person in fear of battery.

Innes Vs. Wylie:-A policeman unlawfully prevented the plaintiff from entering into
the club premises. It was held that the policeman was entirely passive motionless like
a door or wall to prevent from entering the room.
Judgment:-There was no assault.

If a person advances in a threatening manner to use force there is an assault. As

in…..,

Stephens Vs. Myers:- The plaintiff was the Chairman at a church meeting, defendant
also sat on the same table. In an angry discussion, the defendant advances towards
Chairman with clinched fist saying that he will pull the Chairman out of the chair. But
was stopped by the Churchwarden.
Judgment: - Here the defendant was held liable for assault.

-:BATTERY:-
Battery is a “intentional application of force to another person without any lawful
justification”.
Essential Elements of Battery:-
1. There should be use of force.
2. The same should be without any lawful justification.

1. There should be use of force.

Mere touching of another’s body without any lawful justification amounts to battery.
The force may be used through any objects like stick, bullet, throwing of water,
splitting on man’s face or making person fall down by pulling his chair.

Mere passive obstruction however cannot be considered as the use of force.

Innes Vs. Wylie:-A policeman unlawfully prevented the plaintiff from entering into
the club premises. It was held that the policeman was entirely passive motionless like
a door or wall to prevent from entering the room.
Judgment:-There was no battery.

2. Without any lawful justification:-

It is essential that use of force should be intentional and without any lawful
justification.
Harm voluntarily suffered by a person is not battery, as ‘volentinon fit injuria’ is a
complte defence.
Similarly, touching of a person in a friendly way to draw his attention to something is
no battery.

Harm which is unintentional is not actionable.

Stanley Vs. Powell.:- Powell, who was member of shooting party fired at pheasant,
but pellet (bullets in gun) from gun glanced off a tree and accidentally wounded
Stanely who as another member of shooting party.
Judgement:- It was held Powell is not liable as he had no intention to fire at
Stanley.

Cherubin Gregory Vs. State of Bihar:- It was held that fixing naked live wire,
without due warning across the passage of the latrine to keep the trespassers away
from the latrine and thereby causing the death of trespassers was actionable.
Judgement:- It was that the State of Bihar was held liable as because fixing naked
live wire without any notice was an intentional act.
ASSAULT BATTERY
1. Every assault does not include 1. Every battery includes the assault.
battery. In fact, battery is an aggravated
form of assault.
2. For an assault a mere apprehension 2. For a battery there must be an
of danger is sufficient. actual application of physical force.
3. As Assault is attempt battery. 3. Battery is an aggravated assault.
4. There is an element of fear in 4. Since there is actual application of
assault. physical force in battery it is
considered more serious than
assault.
5. Actual contact is not necessary in 5. Actual contact is necessary in
assault. battery.

5. Defenses to an action for Assault and Battery:-

1. Self-Defence.
2. Defence of one’s property.
3. Expulsion of trespasser.
4. Retaking of Goods.
5. Exercise of parental or quasi-parental authority.
6. Leave and Licence.
7. Preservation of public peace.
8. Legal Process.

1. Self-Defence:- Self-defence or defence of one’s wife or husband, children, parents

or one’s master is always permissible.
This sort of self-defence is technically known as “ Son assault demense”, which
means that the act complained of was the effect of the plaintiff’s own attack.
 The use of force is self-defence, would be legally permissible only if it conforms to
general two conditions, viz.,
I. It was not unnecessary, and
II. It was not disproportionate of the evil to be prevented.
For instance, if a person gently strikes another with a little stick on his
shoulder, it would not justify the latter to draw a sword and cut and hew
the other.
2. Defence of one’s property:- Assault in defence of possession of a house, or
goods and chattels is justifiable, provided no more force is used than is reaqsonably
necessary.
3. Expulsion of trespasser:- If a man enters into or upon the property of another
without his permission and with force and violence, the owner is justified in turning
him out without a previous request to depart and may use such force as necessary,
but if he enters quietly, he must be first requested to retire before force can be
used to turn him out.
4. Retaking of Goods:- The rightful owner (or his servant by his command) may
justify an assault in order to repossess himself of land or goods which are wrongfully
in the possession of another, who refuses to deliver them upon request, so long as
no unnecessary violence is used.
5. Exercise of parental or quasi-parental authority:- force may be used for
chastisement or correction of a pupil, child, or apprentice, provided the force is not
excessive or unreasonable. A husband has, however, no such right over his wife.
6. Leave and licence:- A man cannot make a grievance of the harm to the chances
of which he has exposed himself with knowledge and of his free will, for example,
boxing, football, game etc., on the principle of volunti-non-fit injuria.
7. Preservation of public peace:- A person who disturbs a public worship or
meeting may, by reasonable force, be removed. Here also the force should not be
more than what the occasion demands.
It is just possible that the person unlawfully detained may have been set free by the
time the writ of habeas Corpus is disposed of. The courts hearing the petitions may
grant compensation as ancillary relief in such cases. This has been noted above in
Rudul Shah Vs. State of Bihar, and Bhim Singh Vs. State of J. & K, the Supreme
Court granted such compensation in writs of habeas corpus.
8. Legal Process: - Assault may be justified on the ground that it was done in serving
legal process, including search under the law.
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-:NEGLIGENCE:-
1. What is negligence? Discuss the important features of negligence with suitable
cases.
2. “In negligence, liability for the consequences of the wrong is limited by the
bounds of reasonable foresight”. Discuss.
3. Explain the ingredients of tort of Negligence with the help of decided cases?
4. Define Negligence. Explain the important essential legal duty to take care.
5. Explain “Res Ipsa Loquitur”.

Synopsis:-
1. Introduction .
2. Broader classification of negligence.
3. Meaning, Definition and Theories of negligence.
4. The essential elements in determining the liability for negligence
I. The defendant owes a duty a care towards plaintiff.
Case Law: Donoghus Vs. Stevenson.
i. Duty depends on reasonable fore see ability of injury
Plasgraf Vs. Long Island Railroad Co. and American Case
 ii. No liability when injury is not fore seeable:-
Glasgow Corp. V. Muir.
iii. Reasonable fore see ability does not mean remote possibility:-
Bolton Vs. Stone
II. The defendant made a breach of that duty to take care,
Case law: Xavier Vs. State of Tamil Nadu
1. The importance of the object to be attained.
K. Nagireddi Vs. Government of Andra Pradesh .
2. The magnitude of risk:-
Kerala state Electricity Board Vs. Suresh Kumar:-
3. The amount of consideration for which services etc. are offered:
Klaus Mitelbachert Vs. East India Hotels Ltd:-
III. The plaintiff suffered damage as a consequence thereof.
State of Assam Vs. Abdul Halim and others.
Can damages of tort be recovered through a writ Petition?
Case law: Fakir Chand Vs. State of Assam.
Exception to the Rule that the burden of proving negligence is on the plaintiff:-
“Res Ipsa Loquitur”.

1. Introduction:-
Apart from a mere act of a person is not enough to create defendants liability.
Presence of Mental Elements are also important or essential under Law of Torts
(Wrongs) or Crime

Based on above principal,

Under law of torts we have three (3) main types of torts:-

a. Negligence.
b. Strict Liability.
c. Intentional torts.

2. Broader classification of negligence:-

“Negligence” in the Law of Torts
Two meanings are ascribed
it is classified into two
on the basis of its committing

an independent tort on the mode of committing

certain torts.
Eg:- a negligence may mean a mental eg:- trespass and nuisance
Element in the tortuous liability or it may
mean an independent tort.

3. Meaning, Definition & Theories of Negligence :-

Meaning of Negligence,
It is a breach of legal duty to take care resulting in damage to the plaintiff.

Negligence is a mental element in the torts.

Based on the two meanings ascribed to the word “Negligence” has given rise to
two .competing theories:-
1. The Subjective theory:- based upon mental element in the tortuous liability.
2. The Objective theory:- based upon the view that, ‘Negligence’ is an independent
torties act.

Thus, negligence may mean a mental element in the tortuous liability or it may mean
an independent act.

In this sense, negligence has been defined as, “the breach of legal duty to take
care which results in damage, undesired by the defendant to the plaintiff”.

Therefore, “Negligence is a breach of legal duty to take care resulting in damage to

the plaintiff”.

This definition of negligence can be divided into four component parts that plaintiff
must prove to establish negligence.

This definition of negligence can be divided into four component parts that plaintiff
must prove to establish negligence.

The legal burden of proving these elements falls upon the plaintiff.

4. The essential elements in determining the liability for negligence are:-

1. The defendant owes a duty a care towards plaintiff.
2. The defendant made a breach of that duty ,
3. The tortfeasor (the third party or other private person) directly caused the
injury.
4. The plaintiff suffered damage as a consequence thereof.

I. The defendant owes a duty of care to the plaintiff.

The meaning of the duty here it means, a legal duty rather than a mere moral,
religious or social duty.
There is no general rule of law defining such duty. It depends in each case whether a
duty exists.

One well-known case is Donoghus Vs. Stevenson.

Facts of the case:- “A” purchased a bottle of ginger beer from a Retailer for the
appellant (Mrs. Donoghue). Mrs. Donoghue consumed part of a drink containing a
decomposed snail while in a public bar in Paisely at Scotland and claimed that it had
made her ill seriously suffered in her health. The sanil had not been visible, as the
bottle of beer in which it was contained was opzque.

Neither the friend who bought her to public bar, the supplier who served bottle for her
nor the shopkeeper who sold it, were unaware of the snail’s presence.

So, the manufacturer was Mr. Stevenson for damages for breach of contract because
there was no contract between them.

The defendant pleaded that he did not owe any duty of care towards the plaintiff.
The majority (3:2) ratio/ members of the House of Lords agreed that Mrs. Donoghue
had a valid claim, but disagreed as to why such a claim should exist.

Lord Mac Millan thought this should be treated as a new product liability case.

Lord Atkin argued that the law should recognize a unifying principle that we owe a
duty of reasonable care to our neighbours, for which he quoted the bible in support of
his argument, specifically that the general principle that “thou shalt love they
neighbor”.

Negligence is a breach of legal duty to take care resulting in damage to the plaintiff.

Judgment:- The House of Lords held that the manufacturer owed her a duty to take
care that the bottle did not contain any noxious matter, and that he would be held
liable on the breach of the duty.

Plasgraf Vs. Long Island Railroad Co. an American Case:-

The two servents of the defendants were trying to help a passanger to board a train.
The passanger had a parcel with him.
Due to the negligence of the servants of the defendants, the parcel fell.
The package contained fireworks and it exploded and its shock knocked over some
scales about 25 feet away striking and injuring the plaintiff.
It was held that she could not recover damages.
Cardozo. C.J., observed:”The conduct of the defendant’s guard, if a wrong in its
relation to the holder of the package, was not a wrong in its relation to the plaintiff
standing far away.
Relative to her it was not negligence at all.
Nothing in the situation gave notice that the falling package had in it the potency of
peril to persons thus removed.
The Lordship further added that, “the law of Causation remote or proximate, is thus
foreign to the case before us.

Duty depends on reasonable fore see ability of injury:-

If the defendant could reasonably fore see injury to the plaintiff,

He owes a duty to prevent that injury and failure to do but ommittes to do that makes
him liable.

No liability when injury is not fore seeable:-

Glasgow Corp. Vs. Muir.
The manageress of the defendant corporation tea-rooms permitted a picnic party.
Two members of the picnic party were carrying a urn of tea through a passage.
There were some children buying sweets and ice-cream.
Suddenly, one of the persons lost his grip and the children including Muir were injured.
Judgment:- It was held that the manageress could not anticipate that such an event
would happen as a consequence of tea urn being carried through the passage, and
therefore, she had no duty to take precautions against the occurrence of such and
event

Reasonable fore see ability does not mean remote possibility:-

Bolton Vs. Stone:-A batsman hit a ball and the ball went over a fence and injured a
person on the adjoining highway.
This ground had been used for about 90 years and during the last 30 years. The ball
had been hit in the highway on about six occasions but no one had been injured.

The Court of Appeal held that the defendants were liable for negligence.

But the house of Lords held that the defendants were not liable on the basis of
negligence.

II. The defendant made a breach of that duty to take care:-

Breach of duty means-> “non-observance of due care” which is required in a

particular situation.

The plaintiff must prove that the defendant committed a breach of duty to take or he
failed to perform that duty.
For ex:- It is the duty of the Banker while accepting any cheque for encashment to
make sure that the signatures are genuine.
If the Banker fails to perform this duty before allowing encashment of a cheque, he/it
will be liable for negligence.

Xavier Vs. State of Tamil Nadu:-

The death of the petitioner’s son, who was blind, occurred due to the negligence on
the part of the respondents, in not maintaining electric poles efficiently.

The Madras High Court, therefore, awarded Rs 50,000/- as compensation with interest
at 12% per annum from the date of entertaining the writ petition till the date of
realization.

Standard of Care:-
Law requires, to take into consideration the three important points to determine the
standard of care.
1. The importance of the object to be attained.
2. The magnitude (largeness) of the risk, and
3. The amount of consideration for which services etc. are offered.

1. The importance of the object to be attained.

K. Nagireddi Vs. Government of Andra Pradesh
Due to construction of a canal by the State Govt., all the trees of the plaintiff’s orchard
died.
The plaintiff alleged that the government due to negligence did not cement the floor.
Judgment:- It was held that the construction of canal was of great importance and
but not cementing the floor was not negligence from the state government.

2. The magnitude of risk:-

Kerala state Electricity Board Vs. Suresh Kumar:-
A minor boy came in contact with overhead electric wire which had sagged to 3
feet above the ground, got electrocuted thereby and received burn injuries. The
electricity Board had a duty to keep the overhead wire 15 feet above the
ground.
Judgment:- The Board was held liable for the breach of its statutory duty.

3. The amount of consideration for which services etc. are offered:

Klaus Mitelbachert Vs. East India Hotels Ltd:-
 A visitor, who got seriously injured when he took a dive in the swimming pool, in
a five star hotel.
Therefore the question of liability of a five star hotel arose to a visitor.
It was observed that there is no difference between a five star hotel owner and
insurer so far as the safety of the guest is concerned.
Judgment:- It was observed, a five star hotel charging high from its guests owes
a high degree of care as regards quality and safety of its structure and services
it offers and makes available.

III. Consequent Damage to the Plaintiff:-

It is also necessary that the defendants breach of duty must cause damage to the
plaintiff.
The plaintiff has also to show that the damage thus caused is no too remote a
consequence of the defendant’s negligence.

State of Assam Vs. Abdul Halim and others:-

6 years old son of the appellant died, as a result of falling in a then feet deep
sewerage tank in the city of Madras.
The tank was not covered with a lid and was left open.
The High Court dismissed the writ petition on the ground that in writ jurisdiction it
was not possible to determine as to which of the respondents was negligent in leaving
the sewerage tank uncovered.
Judgment:- The Supreme court set aside the High Court judgment and directed the
Respondent No. 1. the State of Tamil Nadu to pay sum of Rs. 50,000 with interest at
12% per annum from January 1, 1990 till the date of payment.
The Apex Court further observed that it will be open to the State of Tamil Nadu to
take appropriate proceedings to claim the said amount or any authority which might
be responsible for keeping the sewerage taken open.

Can damages of tort be recovered through a writ Petition?

Facts:- A woman died due to electrocution.

Judgment:- The learned Single Judge granted Compensation of Rs70,000/- to the
applet Fakir.
This appeal was filed for enhancement of the amount of compensation.
The counsel for the respondent contented inter alia, that the appellant should have
filed a civil suit in order to prove the damages because the present case comes under
“Tort”.

The Division Bench of the High Court rejected the said argument of the respondent
and observed that normally the cases arising out of tortuous liability are filed in a Civil
Court but once the learned single Judge has entertained the writ petition and
asked for the report from the chief electrical inspector and once a finding of
negligence has been recorded, there is no obstacle in the way of writ court
to determine proper compensation.

Judgment:- By the Division Bench of the High Court enhanced the amount of
compensation from Rs. 70,000/- to Rs.1,00,000/- (Rupees one lakh only)/-.

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 Explain “Res Ipsa Loquitur”.

Exception to the Rule that the burden of proving negligence is on the

plaintiff:-

“Res Ipsa Loquitur”.

Res Ipsa Loquitur:- It is the Latin Phrase, Res Ipsa Loquitur, means the thing
itself speaks.

Maxim Explained in case Pushpabai Purshottam Udeshi Vs. M/S. Ranjit Ginning and
Pressing Co. Pvt. Ltd., the facts were as follows:-
The rule that it is for the plaintiff to prove negligence, and
Not for the defendant to disprove it.
It is in some cases one of the considerable hardship to the plaintiff.
Because it may be that true cause of the accident lies, solely within the knowledge of
the defendant who caused it.
It will be for the defendant to establish that the accident happened due to some other
cause than his own negligence.
The plaintiff can prove the accident, but he cannot prove how it happened, so as to
show its origin in the negligence of the defendant.
This hardship is avoided to the great extent by the rule res ipsa loquitur (the thing
speaks for itself). In such, it is sufficient for the plaintiff to prove the accident and
nothing more,
For there is a presumption of negligence according to this maxim.
In Pushpabai Purshottam Udesi Vs. M/s. Ranjit Ginning and Pressing Co. Pvt. Ltd., the
facts were as follows:-
Facts:
One Purshottam Tulsidas Udeshi met with his death in a motor car accident, when he
was travelling in the car of the defendants due to rash and negligent driving by their
Manager.
His wife and children brought the suit for recovery of damages.
Judgement:- the Supreme Court held:-
 On the facts made out the doctrine (i.e., res ipsa loquitur) is applicable and it is for the
opponent to prove that the accident did not take place due to their negligence.
“This they have not attempted to do. In the circumstances we find that the
tribunal was justified in applying the doctrine.”

Thus the defendants were held liable for negligence.

The maxim does not embody any rule of substantive law nor a rule of evidence.
It is not rule of any kind, but simply the caption to an argument on the evidence.

Lord Shaw remarked that if the phrase had not been in Latin, nobody would
have called it a principle.

According to John G. Fleming, the maxim Res Ipsa Loquitur:- is

“no more than a convenient label to describe situations, where notwithstanding the
plaintiff’s inability to establish the exact cause of the accident,
The fact of the accident by itself is sufficient, in the absence of an explanation,
To justify the conclusion, that most probably the defendant was negligent which has
caused injury.

Conditions for application of the maxim Res Ipsa Loquitur. As follows.

1. Management or control of the defendant or his servants.

2. Accident is such as in ordinary course of thing does not happen if those who
have the management with proper care, and
3. Absence of explanation.

Management or control of the defendant or his servants.

Case Laws:-

1. Municipal Corporation of Delhi Vs. Subhagwanti. A.I.R. 1966 SC 1975 at

p.1752.
2. Syed Akbar Vs. St of Karnataka. A.I.R. 1979 SC 1848.

Accident is such as in ordinary course of thing does not happen if those who
have the management with proper care,

Case Laws:-

1. Oriental Fire and General Insurance Co. Ltd. Vs. Smt. Narayanibai and
others- AIR 1984 p 47.

Facts:- When the vehicle goes to the offside of the road and strikes against a tree the
principle of res ipsa loquitur is attracted.

Once this attracted the burden shifts on the owner and the driver:-
1. To show that the vehicle was properly maintained and
2. Due diligence was exercised in driving the vehicle.

It is not shown that there was any obstruction on the road or that there was an
imminent danger in front, which the driver had to avert.

In the circumstances of the case, presumption is that the vehicle must have been driven
in such a manner that it was not under the control of driver unless the owner rebuts this
presumption the claimants are bound to care and caution taken driver in driving the
vehicle.

There is nothing to show that the accident occurred in spite of reasonable care and
caution taken by driver in driving the vehicle.

The tribunal rightly held that the owner failed to discharge the onus of providing want of
negligence.
***************

Contributory Negligence:-

What is Malicious Prosecution? Explain its essentials.