The Author, Y. Srinivasa Rao, is M.A (English Litt.)., B.Ed., LL.M., (Ph.D) Research Scholar in Torts. He is also Senior Civil Judge cum Assistant Sessions Judge, Avanigadda.
‘Law of Tort concentrates more to the victim and his harm than to the mental element of wrongdoer.’
In India, damages recovered in tort cases have no comparability to those awarded by the American Courts. In USA, lawyers encourage filing tortious claims for high compensation. The reason is that they will get a share in the damages awarded to the parties to the lis. In India, delay in getting relief from the civil courts has also obstructed the propensity to approach the Civil Courts for filing tort based cases.
“The Courts in India are not an adequate alternative forum in which litigation may be resolved, delays in the resolution of these cases (Tort cases) in India, and India’s Court system lacks the procedural and practical capability to handle this litigation.” – Union of India admitted in Bhopal Tragedy case.
Law of tort is comparatively common law development in India. It is supplemented by systematising (codification) statutes including statutes having authority to grant damages and compensation. Where there is tort, there is remedy. If there is no remedy, there is no tort. ”ubi ius, ibi remedium” (Roman legal maxim) says ”where there is a right, there is a remedy”.
More often than not, the law will not countenance a situation where a person has a legal right but no means of enforcing it. If legal right is infringed, tort comes into play. My poignant theses concentrates about the lack of the procedural and practical capability to handle this litigation in India when compared to other countries because Union of India admitted in Bhopal Tragedy case “The Courts in India are not an adequate alternative forum in which litigation may be resolved, delays in the resolution of these cases (Tort cases) in India, and India’s Court system lacks the procedural and practical capability to handle this litigation.”
Is it is safe to the society to simply overlook law of torts? The development of the ”theory of absolute liability” in the M.C. Mehta’s case is a significant factor to say the law of torts in India has not been overlooked.
Importance of law of torts have been recognized in India is clear from the recent rulings of the Supreme Court of Indian and High Courts on tortious liability of multinational corporations in India, findings on constitutional torts, evolution of tort of sexual harassment, victim compensation schemes, and award of damages for violation of human rights under the head of Writ jurisdiction by the superior Court , including a recent Rs.20 crore exemplary damages in the Upahaar Theatre fire tragedy case by the Delhi High Court are also significant changes in the tort law of India, a fortiori, In Bhopal Gas leak case, the primary financial restitution paid by UCC was negotiated in 1989, when the Supreme Court of India approved a settlement of US$470 million (Rs. 1,055 crore (equivalent to Rs. 80 billion or US$1.1 billion in 2017)). This amount was immediately paid by UCC to the Indian government. These are all examples showing the importance of Tort law in India.
If a person goes to police station and lodges a report, police usually calls the person against whom the report is lodged, of course, in course of investigation. If a party files a civil suit seeking remedy under tort law alleging that his legal right is infringed, there are instances that such plaint is being returned in the first instance on the ground that how the suit is maintainable. Of course, there is heap of miscellaneous instances for such judicial act.
Here, the point is why are most of the people in India so enthusiastic to seek remedy under Penal law instead of remedy under civil law? Poverty, lack of awareness of tort law, requirement of court-fee to seek tort based relief, delay in disposal of civil suits, cumbersome procedure, and even if relief is ordered after long years, it is very low to the expectations of the parties etc may be some of the reasons for which the people of India are hanging back to approach a civil court to file tort based cases. In fact, ‘Torts concentrate more to the victim and his harm than to the mental element of wrong doer.’
Law of torts in Indian is borrowed from English law of torts. The ‘broader theory’ of Winfied says that it is law of tort but not law of torts. On the other hand, according to ‘pigeon hole’ theory of Salmond, there is law of torts. Of course, both these theories seems to have recognized some support.
1. Asbhy Vs. White – (In 1702, the principle ”ubi jus ibi remedium” is recognized)
2. Pasley Vs. Freeman (1789) – Origin of the concept of ‘ Tort of deceit’)
3. Lumley Vs. Gye – (1853) 2 E & B 216 – (Inducement of breach of contract)
4. Rylands Vs. Fletcher – (1868) LR 3 HL 330 – (The rule of Srtict liability. Considred ‘neglgience’ as a separate tort).
5. Rookes Vs. Barnard (1964) A.C.1129 – (The tort of intimidation is discussed)
6. Winsome Vs. Greenbank (1745) – (Considered that inducement to a wife by husband is a tort).
As was observed in M.C. Mehta v. Union of India ( A.I.R. 1987 S.C. 1099), the Indian courts are now prepared even to move ahead of the English Courts in ensuring better welfare conditions to the Indian people. Has the laxity to sue for tort based remedies obstructed the complete codification of civil wrongs in India? Of course, nevertheless many aspects of law of torts were codified in separate enactments, it is one of the main reasons. The Consumer Protection Act,1986 is also one of such enactments.
According to Maine, the group, not the individual, is the primary unit of social life. With the progress of civilisation, this condition gradually gives way to a social system based on contract. This is the age of the standardised contract & of collective bargaining (trade unions, business associations, etc.). Even the contracts, which an individual enters into in everyday life, have been standardised as contract for water, electricity or contract for a carriage with a railway company. The freedom of contract is, thus, being curtailed every day. Thus, Maine’s theory of ‘Status to Contract’ does not have much force in the modern age.
In India, the policy of ‘mixed economy’ has assumed greater control over individual liberty & freedom. The State can impose reasonable restrictions in the interest of the public . See. Article 19(6) of the Indian Constitution . According to Pollock that this theory is limited only to laws of property because personal relations like marriage, minor’s capacity, etc. are still matters of status and not of contract.
As per Analytical School, custom is not law, until its validity has been established by a judicial decision/by an Act of legislature. But, according to Historical School, Custom is law by itself. It does not require State recognition to become a law.
Tort and Crime:-
If a tort is a private/civil wrong, crime is public wrong. Mostly, intention is irrelevant but there are some exceptions. As to defamation and malicious prosecution etc, intention is relevant even in torts. But, in criminal cases, ‘Mens rea” is the most essential factor. Presently, tort law is uncodified whereas criminal law is codified law (Example: IPC).
Despite crime may be a tort (civil wrong), the cause of legal action in civil tort is not necessarily the result of criminal action. In torts, If a legal right is infringed owing to negligence, such negligence does not amount to criminal negligence. In civil side, the person who committed the act is called as ‘tortfeasor”.In criminal side, the person committed the act is known as ”accused”.
The difference between Civil and Criminal law:-
1. Who the parties are. (In civil, plaintiff Vs. defendant; In criminal, State Vs. Accused )
2. What the possible outcomes are.
3 The applicable stand of proof. (In civil, Preponderance of evidence; In criminal, beyond a reasonable doubt).
4. The consequences for the defendant. (In civil, Liable or not liable; In criminal, Guilty or not guilty).
5. The procedural rules that apply. (In civil, Civil Procedure Code; In criminal , Criminal Procedure Code).
How to know whether it is a civil wrong or criminal act to impose liability. If a person legal right is infringed by an act outcome of either by intentional action or by reckless behaviour or by carelessness or under head of strict liability or under the head of product liability, tort law as well as criminal law comes into play.
It means that liability can be imposed under tort law and criminal law.
Example:- A a person commits an accident by his negligence driving, he would be prosecuted for the offence under section 304-A of IPC. Besides this, civil action follows for claiming compensation to the victim. Coming to torts are concerned, ‘Torts concentrate more to the victim and his harm than to the mental element of wrong doer.’ In fact, the word ‘Tort’ was introduced in 1580. Indian Fatal Accidents Act, 1855 is an Act to provide compensation to families for loss occasioned by the death of person caused by actionable wrong. The Motor Vehicles Act was passed in the year 1988 by Parliament of India and regulates almost all the aspects of road transport vehicles.
Tort and Contract:-
A particular act is tort or contract is to be found by observing whether it is a tortious act or contract; whether it comes under civil law or criminal law; to impose liability, whether common law principles apply or statutory law. After observation of these principles, it can be found out whether it is tort or contract. Tort law dictates the relationship between the parties who ave not had an opportunity to agree to a set of rules. Contracting around the tort law default rules are concerned, the parties agreeing to a different set of rules other than the default tort rules. Torts is the law of civil wrongs.
Tort and Specific Relief Act:-
In order to provide reliefs in cases relating to contracts, torts and other cases Specific Relief Act, 1877 was enacted. Now, it is the Specific Relief Act,1963. The remedies under this Act can be summed up as follows:
1. Recovery of possession of the property. (See. Sections 5 and 6 of S.R.Act which deal with specific immovable property whereas sections 7 and 8 of S.R.Act deal with movable property.)
2. Rectification of instrument (See. Section 26 of the S.R. Act)
3. Injunction (See. Sections 36 to 42 of S.R.Act,1963)
4. Rescission of contract (See. Sections 27 to 30 of Chapter IV of Part II of S.R.Act,1963)
5. Cancellation of Instrument/deed (See. Sections 31 to 33 of the S.R.Act, 1963)
6. Declaratory decree (See. Sections 34 and 35of the S.R.Act,1963)
7. Specific performance of contract. (See. Chapter 2 of Part II of Specific Relief Act, 1963)., etc.,
Consumer Protection under the Tort law:-
Consumer protection Act is to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers’ disputes and for matters connected therewith. In welfare state, like India, tortious liability is very essential because Tort law is a fundamental law for consumer protection. Why are the people of India reluctant to take aid of tortious law remedies available to them ? For some inexplicable reasons score out, they are reluctant to pursue the tortious remedies.
The problem is that poverty, illiteracy and unawareness, about tort law and its remedies which prevailing amongst the Indian people. Payment of court-fee , to seek tort law remedy is anohter significant factor to mull over as to availing tortious liability.
1914- 1965 – 613 tort cases dealt by Appellate Courts
1975-1984 – 56 tort cases (only 22 involved product liability cases), which were reported cases.
Though the Consumer Protection Act,1986 is also one of such enactments, as seen from the provisions of the Consumer Protection Act, many situations were left over under which the consumer will have to again approach under law of torts for the redressal of his grievances. What about the remaining issues which were not covered under this Consumer Protection Law? To fix the product liability, the plea of ”negligence” is one grounds available to consumer.
”Breach of duty’ is also essential factor to discuss about product liability. Product liability appears to have been transformed from negligence based liability to strict liability base. So, strict liability is also one of the important to factor for discussion.
On close observation of the language in section 14 of the Consumer Protection Act 1986 and the rulings to that effect, it is evinced that our Court are recognizing the negligence based liability with a mixture of fault based theory. Significantly enough, to know the scope of consumer related civil wrongs,it is very essential to understand the difference between tort and crime as well as contract and tort.
In all cases of bailment, the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quantity and value as the goods bailed. (See. Section 151 of Indian Contract Act). In addition to this, it is seminal to see Latin maxim ” Qui facit per alium facit per se” which means “He who acts through another does the act himself.” Further, Section 154 of the Indian Contract Act deals with ”liability of bailee making unauthorized use of goods bailed”. In such a case, in the given, as it is tortious act, ”Y” is liable to pay damages to the plaintiff who sent his car for servicing to Y’s garage.
To say in short, If the bailor’s claim comes under the purview of specific provisions of Indian Contract Act, it is not a tortious act. If such bailor’s claim rests upon a breach by bailee, the liability of bailee is tortious act. The reason is it is the claim of a visitor against the occupier of premises under the Occupier’s Liability Act. In English law, occupiers’ liability towards visitors is regulated in the Occupier’ Liability Act,1957.
The process of co modification and communication through tort law is being criticised because those are commonly used terms in Marxist literature.
It appears that the reason for such criticism is Martxist literature relates to the tendency of seeing everything in terms of money value.
Torts concentrate more to the victim and his harm than to the mental element of wrong doer. It is , therefore, the expected standard of behavior of the citizens is essential in the Society. Other reason is that tortious liability differs the contractual liability strikingly. The liability under the Contract Act based upon breach of a moral principle to uphold the promises and criminal liability.
Therefore, Pollock analysed certain grounds of tortious liability and started the lines saying “Every tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract …”. Hundreds of years back, Salmond also pointed out that with regard to the province the function of torts, also deserves to be discussed.
From the view of Salmond as to torts are concerned, in succinct, it makes it clear that
1. Law of torts is not a static body of rules;
2. Law of torts is capable of alteration to meet the needs of changing society
3. Tortious liability is flexible;
4. It is difficult to furnish a general formula or criterion like a guide for the decision of the doubtful tort cases in future. Similarly, it is not possible to explain all tort cases arise in past in which tortious liability can be imposed;
5. A decision of a court may depend based on number of factors to impose liability in tort cases.
6. It is thus established that historical development; vengeance; deterrence; ability to bear the loss and economic social background of the case are also relevant factors to impose liability in tort cases.
The theory of ”the sanctity and freedom of contract” was sound slogan in 19th century whereas ” the concept of duty to take care” is sound slogan in 21st century. Social value of liability from being negligent encourages the taking of care. The concept of tort of negligence is very essential to the present society because it Society would be worse off in case of this liability does not recognize. If the consumer is injured by a defective product, it comes under the head of negligence in Torts ( whether it may be negligence of mind or of conduct or a negligent act itself) for his safety and protection.
Although the Consumer Protection Act,1986 was introduced, the concept of negligence was already broadly covered under Tort Law. The present pattern of legal rules is an amalgam of contract and tort and also of strict liability and negligence. It is thus clear that all this amalgam of introducing news rules, and Acts is outcome of delay in codification of torts in India.
The defect in consumer protection Act prima facies appears is that it only protects the consumer. What about the victims of mishaps against the manufacturer? Where is the remedy in consumer protection Act for this situation? Curiously enough, the liability for defective product is still not a coherent legal theory and it is not our law in India. Similarly, the significance of law of product liability is not yet developed in India. For some inexplicable reasons scored out, most of the people of India were unaware of these concepts of liability for defective product and law of product liability.
Why have Indian consumers been reluctant to file civil cases under the law of torts for breach of warranties in spite of the fact that remedies have also been available to them under law of torts? See. The definition of ”deceit” in section 40 of the Draft Civil Wrongs Bill, prepared by Pollock. In this section, it was also included cases of innocent and deliberate representations. But, this was not yet codified.
Despite Consumer is being protected under the Consumer law, the possibility of action for the tort of breach of statutory duty cannot be ignored. The liability of a defective product is broadly covered under the head of negligence in tort law. To say in short, the liability for defective product is a potent factor for consideration. Standard of Duty of Care (See. ”Duty of care” as propounded by Lord Atkin ); pecuniary and Economic Losses resulting from careless acts ; liability of State for negligence; economic losses resulting from careless statement; disclaimer of liability; Duty of owners of Land or Building ; development of the Concept of Strict Liability in Relation to consumer Torts;
Curiously enough, we must not forget that in M.C. Mehta v. Union of India (1987 SC 1086 ) and Bhopal Gas Tragedy cases that Indian Courts have gone much ahead with respect to concept of ”product liability” because in these cases, Hon’ble Supreme Court of India did not apply the exceptions to the concept of ”the strict liability” observed by the English Court in Ryland v. Fletcher.
To sum up this article, it is to be remembered that although certain some fields of law of torts are codified by way of some statutes such as the Consumer Protection Act, 1986, The Motor Vehicles Act,1988, The Fatal Accident Act, etc. Further more, the India Penal Code,1860 criminalises certain areas of tort law.
The problem to understand the solutions for these situations is that in Indian, the courts are following English law of torts because all civil wrongs were not codified. In USA, they are seeking solutions following both contract and tort principles. The German Law seeks for contractual solutions.
But, in India, there is no such express formulation. Now, the problem, we are now facing is such that we cannot depend on English law completely nor can we codify the all branch of tor law. In Bhopal Tragedy case, our courts did not agree English law principle of strict liability and the Apex Court introduced new theory as ”Absolute liability”.
In some cases, we follow the English law of trot principles. Therefore, expansion of law of torts , especially by codifying torts, at least the issues which are essential for public, is acceptable. Indian Courts can therefore provide for better protection and remedies to the Consumers by applying absolute liability concept and strict liability where the facts of the case demand it.
This approach will be required especially in such cases where the consumer will not get proper relief under the C.P. Act 1986 due to negligence based liability recognized there. Then only the consumer’s interest will get proper recognition and protection but it shall be very difficult for the consumers to move to the ordinary courts under law of torts due to the requirement of court fees.
Inasmuch as the Courts in India are not an adequate alternative forum in which litigation may be resolved, delays in the resolution of these cases (Tort cases) in India, and India’s Court system lacks the procedural and practical capability to handle this litigation, it is time to mull over for taking effective steps to codification of torts, to reduce delays in the resolution of these cases, and to invent new procedural laws.
I strongly believe that if there is any rebate or waive or exemption in payment of court- fee and simple procedure laws to disposal of the civil suit, people will approach civil courts to file tort based cases.