- Define Tort and Law of Tort. Discuss its nature. What are its various ingredients? What conditions must be satisfied before a liability in Tort arises? “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 word tort has been derived from the latin word “tortum” which means to twist. 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, aka rights in rem. While the violation of contractual right has clear remedy that arises from the contract itself, the violation of rights that are available to all the persons in general does not have a clear remedy because there is no explicit contract between the two parties. Such violations are called wrongs and it is for such wrongs that the law of torts has been developed. For example, one has a right against all other persons to be free of noise in the night. If somebody starts playing music loudly, then he violates one’s right to be noise free. He is, thus, doing a wrong and even though there is no contract between the two, one can sue him for damages.
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 –
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.
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.
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.
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|
|Tort occurs when the right available to all the persons in general (right in rem) is violated without the existence of any contract.||A breach of contract occurs due to a breach of a duty
(right in persona) agreed upon by the parties themselves.
|Victim is compensated for unliquidated damages as per the judgment of the judges. Thus, damages are always unliquidated.||Victim is compensated as per the terms of the contract and damages are usually liquidated.|
|Duty is fixed by the law of the land and is towards all the persons.||Duty towards each other is affixed by the contract agreed to by the parties.|
|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.||Only the parties within the privity of contract can initiate the suit.|
|Tort applies even in cases where a contract is void. For example, a minor may be liable in Tort.||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.
|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.||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 50 Lacs as exemplary damages.
Distinction between Tort and Crime
|Tort occurs when the right available to all the persons in general (right in rem) is violated without the existence of any contract.||Tort occurs when the right available to all the persons in general (right in rem) is violated and it also seriously affects the society.|
|Act is comparatively less serious and affects only the person.||Act is comparatively more serious and affects the
person as well as the society.
|Intention is usually irrelevant.||Intention is the most important element in
establishing criminal liability. A crime cannot
happen without Mens Rea.
|It is a private wrong.||It is a public wrong.|
|Since it is a private wrong the wronged individual must file a suit himself for damages.||Since it is a public wrong, the suit is filed by the
|The suit is for damages.||The suit is for punishment.|
|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.||There is no compromise for the punishment. For
example, if a person is guilty of murder, he cannot pay money and reduce his sentence.
|Compounding is possible.||Compounding is generally not possible.|
|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.||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.
|Tortious acts are usually not criminal acts.||Several criminal acts such as assault and battery
are also grounds for tortious suit.
Difference between tort and breach of trust:
In the case of breach of trust by the trustee, the beneficiary can claim such compensation which depends upon the loss that the trust property has suffered. The amount of damages being ascertainable before the beneficiary brings the actions, the damages, in the case of a breach of trust, are liquidated. On the other hand, damages in a tort are unliquidated. But a much better way of differentiating tort from breach of trust is to regard the whole law of trust as a division of the law of property which is fairly detachable from other parts of our law. The reason for the classification is mere historical. The law of torts has its origin as part of the common law whereas breach of trust could be redressed in the Court of Chancery.
Tort and quasi-contract distinguished:
When a person gains some advantage or benefit to which some other person was entitled to, or, by such advantage another person suffers an undue loss, the law may compel the former to compensate the latter in respect of advantage so gained. The law of quasi-contract covers such obligations. It signifies liability, not exclusively referable to any other head of the law, imposed upon a particular person to pay money to another person on the ground of unjust benefit.
Common point- the duty in each case is imposed by the law.
Main distinction- the law of quasi-contract gives a right only with respect to money, and generally, it is a liquidated sum of money. Law of torts, apart from a right to damages, grants other remedies also. Moreover, a claim from damages under the law of torts is always for an unliquidated sum of money. Also, in a quasi-contract the duty is always towards a particular person, whereas under the law of torts, the duty is towards persons generally.
Ingredients of Tort (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 – 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 Damno.
Injuria Sine Damno –
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 –
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 in Rylands 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.
- Describe general exceptions regarding Torts that are not actionable / General Defences for Torts.
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
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 watching 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 a 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 sufferes 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 spring gun. The defendant had put spring guns without any notice and was thus held liable.
3. Inevitable Accident
Accident means an unexpected occurrence 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.
In Assam State Corp., etc federation ltd. v Smt. Anubha Sinha, the premises belonging to the plaintiff were let out to the defendant. The defendant that is the tenant requested the landlord to repair the electric wiring which was defective but the landlord failed to repair the same. There occurred an accidental fire in those premises probably due to short circuit of electric connection. There was found to be no negligence on part of the tenant. In an action by the landlord to claim compensation from the tenant, it was held that since it was a case of inevitable accident, the tenant could not be made liable for the same.
In Sridhar Tiwari v. U.P. State Road Transport Corporation, while bus A belonging to the U.P.S.R.T. Corporation reached near a village, a cyclist suddenly came in front of the bus. It had rained and the road was wet. As the driver applied brakes to save the cyclist the bus skidded on the road, as a result of which the rear portion of this bus hit the front portion of bus B coming from the opposite direction. It was found that at that time, both the buses were being driven at a moderate speed and the accident had occurred despite due care on the part of the drivers of both the buses. It was held that the accident had occurred due to inevitable accident and therefore the defendant corporation was held not liable for the same.
In Brown v. Kendall, the plaintiff’s and the defendant’s dogs were fighting. While the defendant was trying to separate them, he accidentally hit the plaintiff in his eye, who was standing nearby. The injury to the plaintiff was held to be the result of pure accident, for which no action could lie.
4. Act of God
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.
In Nicholas v. Marsland, the defense of Act of God was successfully pleaded. There the defendant created some artificial lakes on his land by damming some natural streams. Once there was an extraordinary rainfall, stated to be the heaviest in human memory, as a result of which, the embankments of the lakes gave way. The rush of water washed away four bridges belonging to the plaintiff. It was held that the defendants were not liable as the loss had occurred due to 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.
In Collins v. Renison, the plaintiff went up a ladder for nailing a board to a wall in the defendant’s garden. The defendant threw him off the ladder and when sued for assault, he took the pleas that he had ‘gently shaken the ladder which was a low ladder and gently overturned it and gently threw the plaintiff on the ground, thereby doing as little damage as possible to the plaintiff’ after the plaintiff refused to come down. It was held that the force used was not justifiable in defence of the possession of land.
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.
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.
In Cope v. Sharpe, the defendant entered the plaintiff’s land to prevent the spread of fire to the adjoining land over which the defenfant’s master had the shooting rights. Since the defendant’s act was considered to be reasonably necessary to save the game from real and imminent danger, it was held that the defendant was not liable for trespass.
In Carter v. Thomas, the defendant, who entered the plaintiff’s premises in good faith to extinguish fire at which the fireman had already been working, was held liable for trespass.
In Kirk v. Gregory, after A’s death, A’s sister-in-law removed some jewellery from the room where he lay dead to another room, thinking that to be a safer place. From there, the jewellery was stolen. In an action by A’s executors against A’s sister-in-law for trespass to the jewellery, it was held that since the interference was not reasonably necessary, she was liable.
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 damage.
- What are the torts relating to the absolute liability? What are its kinds? What is Ryland vs Fletcher rule? What are its exceptions? Is this rule applied in India in present circumstances? If not, why?
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 ofRyland 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.
- 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.
- 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 fro m the tank.
- 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 defence cannot be pleaded because the defendant must take precautions to prevent such an act. In 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 defence 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.
- 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.
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.
- 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.
- 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.
- Temporary and perpetual injunction:
These have been defined in Section 37, Specific Relief Act, 1963 as follows:
(1) A temporary injunction is such as to continue until a specified time, or until further orders of the court.
(2) A perpetual injunction is one by which the defendant is perpetually enjoined from the assertion of a right, or from the commission of an act, which could be contrary to the right of the plaintiff.
A temporary injunction is generally granted before the case has been heard on merits and it is only provisional and as such continues until the case is heard on its merits or until further orders from the court. It does not mean determination in favour of the plaintiff but simply shows that there is a substantial question requiring consideration. When it is, for example, intended that the property should continue to remain in its existing condition rather than being destroyed or wrongfully disposed of before the final decision, such an injunction will be issued. If the court, after fully going into the matter finds that the plaintiff in entitled to the relief the temporary injunction will be replaced by a perpetual injunction. If however the plaintiff’s case is found to be unjust, the injunction will be dissolved.
- Prohibitory and mandatory injunction:
Prohibitory injunction forbids the defendants from doing some act which will interfere with the plaintiff’s lawful rights. The examples of it are restraining the defendant from committing or continuing the acts like trespass or nuisance. Mandatory injunction is an order which requires the defendant to do some positive act, for example, to pull down a wall which causes obstruction to the plaintiff’s way of light.
‘You should not construct the wall’ is a prohibitory injunction and ‘You should demolish the wall’ is a mandatory 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  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)  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.
- 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.
Making money quickly is a very tempting proposition. 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 –
- 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)
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.
- 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.]
Composition (Section 16)
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.
Jurisdiction (Section 17)
- 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.
Composition (Section 20)
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;
Jurisdiction (Section 21)
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 –
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.