lex doctrina

AIBE – XVII
Torts, CP, MVA
(5 Marks)
Torts
➢The term “Tort” is derived from the Latin term “tortum”
➢Tort is a civil wrong.
➢Torts Law is the creation of the Judicial Decisions (judge made law)
➢The term “tort” was first reported in the “Boulton v. Hardy” in 1597

➢Salmond defined Tort as -

❖ Tort is a civil wrong for which the remedy is a common law
action for un-liquidated damages, and which is NOT
exclusively the breach of a contract, or, the breach of a trust,
or, other merely equitable obligation.
Torts – Essential Elements
➢Breach of some duty
❖ Act or Omission of legal duty (Duty must be assigned by law,
not by will of parties)
❖ Donoghue v. Stevenson (ginger beer)
❖ Municipal Corp of Delhi v. Subhagwanti 1966
➢Legal Damage
❖ There must be violation of a legal right of a person and, if it
is not, there can be no action under law of torts.
➢Remedy
❖ Plaintiff must have a remedy of legal damages from the
defendant.
Torts – General Principles
➢ Law of Tort
➢Winfield’s theory
➢Ubi jus ibi remedium
➢There is no tort without remedy
➢Tortious Liability is only one
➢Ashby v. White
➢ Law of Torts
➢Salmond’s theory
➢New problem, new principle
➢Reylands v. Fletcher
Torts – General Principles
➢ Ubi jus ibi remedium
➢Ubi → there
➢Jus → the legal authority to do or to demand something
➢Ibi → without
➢Remedium → the right of action (actio)

➢Recognition to this legal maxim in England gave birth and life to the
law of torts.
Torts – General Principles
➢ Injuria Sine Damno
❖ Injuria → legal injury
❖ Sine → without
❖ Damno→ damage
❖ Violation of a legal right without causing any harm, loss or
damage to the plaintiff.
➢ Examples
➢Tresspass
➢Defamation
➢ Ashby v. White 1073
➢ Bhim Singh v. State of J&K 1986
Torts – General Principles
➢ Damnum Sine Injuria
❖ Damnum → damage
❖ Sine → without
❖ Injuria → legal injury
❖ Causing damage to the plaintiff without violation of his legal
right.

➢ Gloucester Grammar School Case 1410 (competitive school)

➢ Bradford Corporation v. Pickles 1895 (Not allowing water to down)
Torts – General Defences
Torts – Volenti Non Fit Injuria
➢ Damage suffered by consent is not a cause of action.
➢ The injured knew that there was a risk in the act
➢ Knowing that there was a risk, he invited it, and suffered.
➢ Examples:
➢Boxing, Races, cricket matches etc.
➢Consent given to doctors for surgery
➢Case Laws:
➢Hall v. Brooklands Auto Racing club 1933
➢Exceptions:
➢Hazardous nature of work, Rescue Cases, Statutes, Unlawful
acts
Torts – Plaintiff The Wrong-Doer
➢ No man can take advantage of his own wrong

➢ A is the wife of B. C induces her to divorce B and gives 50,000/- to

her. She does not give divorce to B and remains with B. C cannot
sue A for the recovery of the sum, because C himself is wrong-doer.
➢ A – a thief enters into the house of B in a night to steal B’s
property. B notices A and hits with club. A cannot sue B for the tort
of assault committed by B.
➢ A possesses a citizen watch. B steals it from A. From B, C steals. A
sues B and C. But B cannot sue C or A, being himself the wrong-
doer.
Torts – Inevitable Accident
➢Means Unavoidable Accident
➢It is a catastrophe occurring without any intervention of man.
➢It is a good defence for the defendant, if he could not possibly
prevent by the exercise of ordinary care, caution and skillness.

➢Case Laws:
✓ Stanley v. Powell 1891 (shooting practice – bullet reflected)
Torts – Vis Major (Act of God)
➢Greater Force, Irresistible force
➢These acts are occasioned by the elementary forces of nature.
➢They are not under the control of men.
➢Examples:
➢A storm which cannot be prevented.
➢Cyclones, Earthquakes, Volcanic-eruptions etc.

➢Case Laws:
➢Nicohols v. Marsland 1876 (extra rains – artificial lake
overflow)
Torts – Private Defence

➢It’s a good defence in Criminal Law and also in Torts.

➢It’s recognized as a good and justifiable ground.

➢Force should not be excess.

➢A-an old woman entered into the house of B to steal some rice. B
had beaten her with club severely and A died. Here B used
excessive force and hence, B is not entitled fo the plea of Private
Defence.
Torts – Mistake
➢Ignorantia facti excusat, ignorantia juris non excusat
➢Ignorance of fact can be excused, but ignorance of the law could not
be excused.
➢Mistake of Fact is a defence in the Criminal Law u/s 76&79 IPC .
➢However, in the Law of Torts, neither Mistake of Law nor Mistake of
Fact stands as a good defence, generally.

➢A has to pay 100 to B. D has to pay 100 to C. A sends E with money to

give it to B. By mistake, E gives 100 to C instead of B. A sues C. C can
plead that he was mistaken that the amount was paid by D. C has to
refund that amount to A. However, he cannot be guilty for conversion.
Torts – Necessity
➢Necessitas inducit privilegium quoad jura privata – Necessity gives
a privilege as to private rights.
➢Wrongful act done by a defendant to save his life and property
under unavoidable circumstances, he can be excused.
➢A’s house is burning. B has come and removed the roof of the
house with an intention to stop the fire and prevent it from further
spreading. B’s act is justifiable.
➢Doctor may conduct an operation in emergency without informing
near relatives of the patient to save the life of the patient.

➢Kirk v. Gregory 1876 (No necessity to remove jewellery)

Torts – Statutory Liability (Statutory Authority)
➢Statutory Authority is a complete defence and justifiable ground
against the tortious liability.
➢If an act is authorized by any act or statute, then it is not actionable
even if it would constitute a tort otherwise.
➢Salus populi est suprema lex – Public welfare is the highest law
➢Exceptions:
➢If a police officer arrests any person on any reason, he should
produce the arrested person before the Court within 24
hours. It is a statutory duty imposed upon him. If he fails to do
so, the arrested person can sue such police officer and this
defence cannot be helpful.
Torts – Joint Liability (Joint tort-feasor)
➢Liability is Joint & Several
➢Injured plaintiff has a right to sue any one of them, some of them
or all of them.
➢If a partner of a firm does a tortious act in the due course of the
partnership firm business, remaining partners are also deemed as
joint tort-feasors and held liable to compensate the plaintiff.
➢A and B are the Principal and Agent. Agent did tortious act against
C in due course of agency. C can sue both of them or either of
them. If the court orders B-agent to pay compensation to C, B can
recover the proportionate damages from A depending on the
circumstances.
Torts – Vicarious Liability
➢Qui facit per alium facit per se – he, who does an act through another, is
deemed in law to do it himself.
➢Respondent Superior – Let the principal be held responsible
➢Generally, a man is liable for his own wrongful acts. He is not liable for
the wrongful acts of others.
➢Under certain circumstances, a man may be held liable for the wrongful
acts of others.
➢Examples
➢Liability of the State for its servants
➢Liability of the Principal for the tort of his agent
➢Liability of partners for each other’s tort
➢Liability of Master for the tort of his servant
Torts – State Liability for Torts (Act of State)
➢Act of State means an act of the Executive i.e. the sovereign power
of a country that cannot be challenged, controlled or interfered
with by Courts.
➢Rex non potest peccare – the King can do no wrong.
➢State is not liable for torts of its employees committed in the
course of performance of sovereign functions.

➢Case Laws:
➢State of Rajasthan v. Vidhyawathi 1962 (Govt jeep accident)
➢Kasturi Lal Balla Ram Jain v. The State of U.P 1965 (Police
constable ran away with gold to Pakistan)
Torts – Master & Servant
➢ Master is vicariously held liable for any tortious act done by his servant
in the course of his employment.
➢Essential Elements:
➢Act must be done by the servant
➢Act must be committed I the course of employment.
➢Exceptions:
➢Negligence of Servants
➢Acts outside the course of employment
➢Independent Contractor
➢Giving lift to an unauthorized third party
➢Lloyd v. Gace, Smith & Co 1912 (clerk’s fraud)
➢State Bank of India v. Shyama Devi 1978 (bank held not liable)
Torts – Strict Liability
➢No Fault Liability
➢Evolved in the case of Reylands v. Fletcher case
➢Essential Elements:
1. Dangerous Thing
2. Escape
3. Non-Natural use of land
➢Exceptions:
1. Plaintiff’s own default
2. Vis Major (Act of God)
3. Consent of the Plaintiff
4. Act of third party
5. Statutory Authority
Torts – Absolute Liability
➢Supreme Court of India has strengthened the Strict Liability
principle by adopting this Absolute Liability rule.
➢Polluter Pays principle is adopted.
➢Stronger than the “Strict Liability”.
➢No exceptions for Absolute Liability.
➢The defendant has no chance to escape, as is in the case of strict
liability.

➢M.C.Mehta v. UOI 1987 (Oleum gas leakage case)

➢Union Carbide Corporation v. UOI 1991 (Bhopal Gas Leak Case)
Torts – Remedies
➢ 4 kinds of remedies

1. By act of the party injured - (Extra Judicial)

2. By operation of law - (Extra Judicial)
3. By agreement between the parties - (Extra Judicial)
4. By Judicial remedy (action or suit) – (Judicial)
Torts – Judicial Remedies
➢Judicial Remedies
➢Damages
➢Injunctions
➢Specific Restitution of Property
Torts – Extra-Judicial Remedies
➢Extra-Judicial Remedies

➢Self Defence (self-help)

➢Expulsion of trespassers
➢Reception of Chattels
➢Re-entry of land
➢Distress damage feasant (seize animals)
Torts – Damages
➢Kinds of Damages
➢Nominal
➢Contemptuous (meager compensation)
➢Compensatory
➢Aggravated
➢Exemplary or Punitive or Vindictive
➢Prospective or Future
➢Specific Restitution of Property
Torts – Specific Restitution of Property
➢The plaintiff has been wrongfully dispossessed of his movable or
immovable property, the Court may order the defendant for
specific performance and the property shall be restored back to the
plaintiff.

➢A’s car was taken away by his friend B. B pledged it to C. Car is in

the possession of C. The Court orders B to get it redeemed from C
and to hand over it to A.

➢Lumley v. Wagner
Consumer Protection Act
Consumer Protection Act, 1986
➢Came into force from July 1, 1987

➢Consumer Disputes Redressal Agencies

1. District Forum – upto 20 lacs
2. State Commission – 20 lacs to 1 crore
3. National Commission – more than 1 crore

➢ Easy, Inexpensive and speedy consumer disputes – max 90 days

➢ Can approach within 2 years

Consumer Protection Act, 2019
➢Came into force from July 20, 2020
➢E-Filing of complaints
➢Unfair Trade Practices
➢The Central Consumer Protection Council
➢The District Forum has been renamed the District Commission
➢It can now hear cases with a value upto 1 crore.
➢The State commission can now hear casess upto 10 crore.
➢The National Commission can hear more than 10 crore.
➢Consumer can file a case whereever he resides.
➢Prohibition and Penalties for misleading advertisements.
Differences between 1986 & 2019 Acts
➢Covers only 5 types of Unfair ➢Added 3 new unfair trade
trade or Deceptive Practices. practices.

➢No provisions for product ➢Contains the provisions of

liability. Product Liability

➢No provisions for Unfair ➢Contains provisions for Unfair

Contracts. Contracts.

➢No provisions for e-commerce ➢Contains provisions for e-

and direct selling. commerce and direct selling.
Differences between 1986 & 2019 Acts
➢Lower Pecuniary limits: ➢Higher Pecuniary limits:
❖ Dist Forum = upto 20 lacs ❖ Dist Forum = upto 1 cr
❖ State Commission = 20 – 1 cr ❖ State Commission = 1 – 10 cr
❖ National Commission > 1cr ❖ National Commission > 10 cr

➢ No provisions for alternative ➢Contains provisions for

dispute resolution mechanisms. alternative dispute resolution.

➢ No regulator was in existence ➢Central Consumer Protection

Authority (CCPA) is established.
Unfair Trade Practices
Under 1986 Act:
➢False oral/written/visible representation
➢Advt misleading price
➢Wrongful or deceitful gifts, charges etc
➢Sale of sub-standard products
➢Hoarding/Destruction of products to raise prices.
Under 2019 Act:
➢Failure to issue a bill or receipt
➢Refusal to accept a good returned within 30 days
➢Disclosure of personal information given in confidence, unless
required by law or in public interest.
Motor Vehicle Act 2019
Salient Features of MVA - 2019
➢ The Motor Vehicle Amendment Act, 2019 ("Act") came into
force on 1st September 2019.
➢ The Amendment Act replaced the Motor Vehicles Act, 1988.
➢ 14 Chapters, 217 sections, 1 schedule
➢ Chapter-I ( Preliminary )
➢ Chapter-II ( Licensing of Drivers of Motor Vehicles )
➢ Chapter-III ( Licensing of conductors of stage carriages )
➢ Chapter-IV ( Registration of Motor Vehicles )
➢ Chapter-V ( Control of Transport Vehicles )
➢ Chapter-VI ( State Transport Undertakings )
Salient Features of MVA - 2019
➢ Chapter-VII ( Construction Equipment and maintenance of Motor
Vehicles )
➢ Chapter-VIII ( Control of Traffic )
➢ Chapter-IX ( Insurance of Motor Vehicles against third party risks )
➢ Chapter-X ( Police powers - Exercise of )
➢ Chapter-XI ( Claims Tribunals - Establishment of )
➢ Chapter-XII ( Miscellaneous )
Salient Features of MVA - 2019
Third-Party Policy: It protects the insured from the liability
arising out of any 3rd party injury or death, also damage
caused to the 3rd party property is covered. Further your
may also opt for personal accident cover for owner driver
for a sum insured of Rs 15 lakhs.
Comprehensive Insurance: This plan offers coverage
against damages to your vehicle from natural calamities
like hurricanes, fire, earthquake, manmade events
including riots, strike etc. In addition to this it covers any
third party liability in term of death, bodily injury and
property damage. Further, you have to opt for personal
accident cover for owner driver for a sum insured of Rs 15
lakhs.
Standalone Own Damage Insurance Policy: Another
type of insurance policy which you can buy to safeguard
your vehicle is Standalone Own Damage insurance policy.
This plan will provide protection to your vehicle against
theft, fire, flood, earthquake etc and is similar to the own
damage cover available under comprehensive insurance
policy.
Offences under MVA - 2019
New Proposed
Section Offence Old Penalty
Penalties
177 General Rs. 100 Rs. 500
New 177A Rules of road regulation violation Rs. 100 Rs. 500
178 Ticketless travel Rs. 200 Rs. 500
179 Disobedience of authorities’ orders Rs. 500 Rs. 2,000
Unauthorized use of vehicles without
180 Rs. 1,000 Rs. 5,000
license
181 Driving without license Rs. 500 Rs. 5,000
182 Driving despite disqualification Rs. 500 Rs. 10,000
182 B Oversize vehicles New Rs. 5,000
Rs. 1,000 for LMV
Rs. 2,000 for
183 Over speeding Rs. 400
Medium passenger
vehicle
Offences under MVA - 2019
New Proposed
Section Offence Old Penalty
Penalties
184 Dangerous driving penalty Rs. 1,000 Up to Rs. 5,000
185 Drunken driving Rs. 2,000 Rs. 10,000
189 Speeding/ Racing Rs. 500 Rs. 5,000
192 A Vehicle without permit Up to Rs. 5,000 Up to Rs. 10,000
Aggregators (violations of licensing
193 New Rs. 10,000
conditions)
Rs. 2,000 and Rs. Rs. 20,000 and Rs.
194 Overloading 1,000 per extra 2,000 per extra
tonne tonne
Rs. 1,000 per extra
194 A Overloading of passengers New
passenger
194 B Seat belt Rs. 100 Rs. 1,000
Offences under MVA - 2019
Old
Section Offence New Proposed Penalties
Penalty
Rs. 2,000 Disqualification for 3
194 C Overloading of two wheelers Rs. 100
months of the licence
Rs. 1,000 Disqualification for 3
194 D Helmets Rs. 100
months of the licence
194 E Not providing way for emergency vehiclesNew Rs. 10,000
196 Driving without Insurance Rs. 1,000 Rs. 2,000
Guardian/Owner shall be
deemed to be guilty. Rs.
199 Offences by Juveniles New
25,000 with 3 yrs
imprisonment.
Offences under MVA - 2019
New Proposed
Section Offence Old Penalty
Penalties
Suspension of
driving licenses u/s
206 Power of Offices to impound documents New 183, 184, 185, 189,
190, 194C, 194D,
194E
Twice the penalty
Offences committed by enforcing
210 B New under the relevant
authorities
section