Description
In the legal world, damage is defined as a loss or harm resulting from injury to a person, property or reputation. Damages, on the other hand, refers to compensation - such as a monetary judgment - provided to a person who has suffered a loss or harm due to the unlawful act or omission of another.
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TABLE OF CONTENTS
Sr.No Topic Page No.
1 Abbreviations 3
2 Table of Cases 4
3 1. Research Methodolog
1.1. Relevance
1.2. !b"ective # Scope of St$d
1.3. %pothesis
1.4. &i'itations of Research
(
4 2. )ntrod$ction
2.1. *vol$tion # +evelop'ent
2.1.1. *vol$tion
2.1.2. +evelop'ent
2.2. Conte'porar Position
2.2.1. &a, of Torts )n )ndia
2.2.2. There is et No Code for Torts in )ndia
(-.
/ 3. )ndian &egal Conte0t # Present R$les # Reg$lations
3.1. 1hat is +a'age
3.1.1. +a'n$' Sine )n"$ria
3.1.2. )n"$ria Sine +a'n$'
3.1.3. &egal +a'age
3.1.4. Re'oteness of +a'age
3.2. 1hat are +a'ages
3.2.1. 2ro' ,here do +a'ages !riginate
3.2.2. 3inds of +a'ages
3.2.3. 4eneral # Special +a'ages
3.2.3.1. 4eneral +a'ages
3.2.3.2. Special +a'ages
3.3. *ffect of &a, !f Torts in the Present Social
Conditions in )ndia
5-1(
( 4. Role or 6$diciar 17-1.
7 /. Co'parative St$d
/.1. +ifference bet,een Tort and Cri'e
/.2. +ifference bet,een Tort and Contract
15-21
. (. Concl$sion 22
5 7. S$ggestions # Reco''endations 23
ABBREVIATIONS
2
Sr.No. Abbreviation
s
Meaning
1 # And
2 4ovt. 4overn'ent
3 8SA 8nited States !f A'erica
4 83 8nited 3ingdo'
/ 8!) 8nion !f )ndia
( )PC )ndian Penal Code
7 Cr.PC Cri'inal Proced$re Code
3
TABLE OF CASES
Sr.No Case
1 Satish Chandra v Ra' +aal 9152:;
2 4lo$cester 4ra''er School case
3 8ndergro$nd ,ater cases
4 Ashby v White
Si!!o"s v British Stee#
$ Ra'eshar v )shan Chandra
% t tagged as a personal ,rong.
2.2 Co"te!+orary 1ositio"
2.2.1 La2 o* Torts i" I"(ia
+$ring Eritish r$le= the Acts of parlia'ent governed co$rts in )ndia
/
the co$rts of
la, ,ere directed to act according to "$stice= eB$it and good conscience if there
,as no specific enact'ent applicable to the disp$te at hand. 1ith regards to s$its
for da'ages in torts= co$rts follo,ed the *nglish co''on la, so far as it ,as not
beond the principles of eB$it= "$stice and good conscience.
(
The co$rts of la,
,ere given the freedo' to depart fro' the *nglish co''on la, ,hen the did
not see' to be in consonance ,ith the 'atter.
7
/ S$pra Note 3.
( Satish Chandra v Ram Dayal 9152:;
7 Action for Slander= +octrine of Co''on *'plo'ent.
7
2.2.2 There is yet No Co(e *or Torts i" I"(ia.
A code $ndo$btedl is $sef$l= ho,ever here it is i'portant to recogniHe that this
branch of la, is still $ndergoing gro,th and develop'ent= hence it ,o$ld be
diffic$lt to prepare a code= 'oreover once a code is prepared= it constricts the
la,s= thereb narro,ing the scope of the la,s and leaving little space for
interpretation.
)t '$st be bro$ght into notice that in 1..(= Sir 2 Polloc? prepared a bill ?no,n as
IThe )ndian Civil 1rongs Eill> at the instance of the 4ovt. of )ndia@ it ,as
ho,ever not ta?en $p for legislation.
.
!ne of the first and i'portant
reco''endations 'ade b the la, co''ission appointed b 4ovt. of )ndia for
legislation is on the s$b"ect of liabilit of the 4ovt. for torts of its servants.
%on>ble 6$stice R.M. Sahai observed that=
“Truly speaking the entire law of torts is founded and structured on morality.
Therefore it would !e primitive to close strictly or close finally the ever
e"panding and growing hori#on of tortious lia!ility. $ven for social development
orderly growth of the society and the culture the li!eral approach to tortuous
lia!ility !y court would !e conducive.”
6$stice Sahai rightl states that codifing the la, of torts ,o$ld deter the gro,th
and li'it the scope of the "$diciar in deciding on 'atters ,ere a tort is
co''itted.
The reason that the codification of la,s has et not been initiated in )ndia is that
there is little litigation in this field and th$s the need for i'ple'entation of the
la,s rarel arises. Also the high co$rt fees= dela of co$rts in decision 'a?ing=
the sheer a'o$nt of litigation in the )ndian co$rts= and the staggeringl lo, "$dge
. Ta?en fro' httpFGG,,,.legalserviceindia.co'GarticleGl125-Torts-)n-)ndia.ht'l on
Nove'ber /= 2:14 at 7F34 p'.
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to pop$lation ratio of 13F1:::::: i.e There are onl 13 "$dges to ever 1: la?h
people
5
in the co$ntr are the reasons for the lo, litigation in )ndian co$rts.
3 I"(ia" Le)a# Co"te3t - 1rese"t R.#es A"( Re).#atio"s
3.1 What is 0a!a)e
+a'age is the loss ca$sed b one person to another or to his propert= either ,ith
the intention of in"$ring hi'= ,ith negligence and carelessness= or b inevitable
accident. The loss ,hich so'e one has s$stained= and the gain ,hich he has
failed to 'a?e. +a'age is the inseverable seB$ence of in"$r. Th$s da'age is the
act$al alteration that is ta?en place= and the har' that has been ca$sed beca$se of
the alteration.
3.1.1 0a!".! Si"e I",.ria
+a'n$' sine in"$ria 'eans an act$al and significant loss ,itho$t infringe'ent
of an legal right. )n s$ch case no action lies. 2or ordinar loss in 'one or
'oneJs ,orth does not of itself co'pose legal da'age. &oss or har' is not a
good gro$nd of action= $nless it is the res$lt of a species of ,rong of ,hich the
la, ta?es grasp.
The %loucester %rammer School case= and the &nderground water cases of no
action lies for 'ere da'age= ho,ever s$bstantial= ca$sed ,itho$t breach of la,.
There are 'oral ,rongs for ,hich the la, gives no re'ed= tho$gh the ca$se
great loss or detri'ent.
5 Ta?en fro' httpFGGarticles.econo'icti'es.indiati'es.co' on Nove'ber /= 2:14.
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3.1.2 I",.ria Si"e 0a!".!
)n"$ria sine da'n$'= therefore= 'eans an infringe'ent of a legal private right
,itho$t an act$al loss or da'age. )n this case the person ,hose right is infringed
has a good ca$se of action.
)t is not necessar for hi' to prove an special da'age= beca$se ever in"$r
i'ports da'age ,hen a 'an is thereb hindered of his right. Therefore= act$al
perceptible da'age is not indispensable as the fo$ndation of an action @ it is
s$fficient to sho, the violation of a right in ,hich case the la, ,ill pres$'e
da'age.
3.1.3 Le)a# (a!a)e
)t is not ever da'age= ,hich is da'age in the ee of the la,. There 'a be a
,rong done to a person= b$t= if it has not ca$sed= ,hat the la, ter's act$al legal
da'age= to hi'= there is no tort in respect of ,hich an action is 'aintainable.
&egal da'age is neither identical ,ith act$al da'age= nor is it necessaril
pec$niar. *ver invasion of a plaintiffJs right= or $na$thoriHed interference ,ith
his propert= i'ports legal da'age@ that is= altho$gh a person in"$red 'a not
s$ffer an pec$niar loss b the ,rongf$l act= et if it is sho,n that there ,as a
violation of so'e right= the la, ,ill pres$'e da'age.
*g. 'sh!y v (hite
3.1.4 Re!ote"ess o* 0a!a)e
8pon breach of d$t the clai'ant '$st see? to establish ho, that res$lt to in"$r
or da'age ,hat ,o$ld be referred to as ca$sation@ ,here in"$r or da'age
s$fficientl has close connection ,ith the breach refers to re'oteness.
)n the case involving Simmons v )ritish Steel plc
the clai'ant fell and h$rt his
head. This led hi' to e0perience depression and da'ages to the s?in. This ,as
not beca$se of the original da'age b$t rather d$e to anger. The co$rts decided
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that the clai'ant ,as entitled to co'pensation both for the accident and for the
s$bseB$ent in"$ries.
)ndian Case - Rameshar v *shan Chandra
2or
*0a'ple
=
K travels to +adar station in M$'bai= as best 'eans of transport ,o$ld be b
train. At so'e point she finds that the train has been derailed o$tside the station
th$s bloc?ing the line and 'a?ing it i'possible for other trains to r$n on that line.
This 'a?es K ret$rn ho'e. )n the afternoon= an intr$der b$rglarises her ho$se and
shoots her ar' and leg. 2ro' a nat$ral point of vie, K ,o$ld clai' that her
absence fro' ,or? ,as beca$se her train got derailed.
!n the contrar= it ,o$ld not be nat$ral for her to clai' that she got shot b the
intr$der beca$se she ,as present at her ho'e and had the train not been derailed
she ,o$ld still be at ,or? and th$s avoided the intr$der= and res$ltant da'age
,as beca$se her train ,as derailed. !f co$rse= one ,o$ld arg$e that had she
ca$ght her train the incident ,o$ld not have occ$rred since she ,o$ld not have
ret$rned ho'e.
)t is conc$red that there arises serio$s do$bts on the e0tent to ,hich the shooting
lin?s to the derailed train. )n legal conte0t= it can be said that the act of shooting is
Atoo re'ote a conseB$enceC of the derail'ent.
3.2 What are 0a!a)es
+a'ages are the pec$niar satisfaction= ,hich a plaintiff 'a obtain b s$ccess
in an action. The defendant is liable for the nat$ral 9or probable; and ordinar
conseB$ences of his act. %e is liable for s$ch da'ages as he in fact conte'plated
or o$ght to have conte'plated ,hen he co''itted the tort. The defendant is
liable if the act is of s$ch a nat$re that in"$rio$s conseB$ences 'ight have been
anticipated fro' it.
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Re'edies
Re'edies
Judicial
Judicial
Damages
Damages
Contemptous;
Nominal;
Substantial;
Exemplary
Contemptous;
Nominal;
Substantial;
Exemplary
Injunction
Injunction
Interim;
Temporary;
Perpetual;
Mandatory
Interim;
Temporary;
Perpetual;
Mandatory
ExtraJudicial
ExtraJudicial
Expulsion o!
Trespasser; "eentry
on land; "ecaption o!
goods;distress
damage jesant;
Abatement of
nusiance
Expulsion o!
Trespasser; "eentry
on land; "ecaption o!
goods;distress
damage jesant;
Abatement of
nusiance
3.2.1 Fro! 2here (o 0a!a)es Ori)i"ate
+a'ages are li'ited to the loss ,hich a plaintiff has act$all s$stained. %e is
co'pensated for=
i. An da'age ,hich is the nat$ral or the probable conseB$ence of an act
s$ch as that done b the defendant= ,hether the defendant conte'plated
s$ch a conseB$ence or not.
ii. An da'age ,hich the defendant did in fact conte'plate at the ti'e ,hen
he co''itted the tort as a nat$ral or probable conseB$ence of s$ch tort.
iii. An da'age ,hich is the probable res$lt of the defndants act= providing
that ,henever the probablit of s$ch a res$lt ens$ing depends $pon the
special circ$'stances of the partic$lar case= the defendant= ,ill not be
liable to co'pensate the plaintiff for s$ch res$lt= $nless he had notice of
s$ch special circ$'stances at the ti'e of his co''itting the tort.
E Inat$ral conseB$ence> 'eans s$ch a res$lt= as '$st follo, fro' the
defendantJs act in the ordinar co$rse of nat$re= in short= a conseB$ence ,hich is
phsicall necessar@ b Iprobable conseB$ence>= s$ch a conseB$ence as= h$'an
nat$re being ,hat it is= $s$all follo,s fro' s$ch an act as the defendantJs= or so
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freB$entl follo,s that a person of ordinar intelligence and foresight ,o$ld
reasonabl anticipate s$ch a res$lt.
Th$s the defendant is onl liable for s$ch da'ages as he in fact conte'plated or
o$ght to have conte'plated ,hen he co''itted the tort. All other da'age ,ill be
e0cl$ded as being too re'ote.
2or *0a'ple in +anden!argh v J Trua"
1here the defendant too? $p a pic?-a0e and chased the plaintiff>s servant bo=
,ho r$shed for shelter into his 'aster>s shop and in so doing ?noc?ed ont the
fa$cet fro' a cas? of ,ine ,hereb the ,ine ran o$t= and ,as lost= the defendant
,as clearl a ,rong-door in p$rs$ing the bo= and here re'oteness of da'age is
not applicable.
The e0pression J 'eas$re of da'ages J 'eans the scale or r$le b reference to
,hich the a'o$nt of da'ages to be recovered is= in an given case= to be
assessed. +a'ages 'a arise to al'ost an a'o$nt= or the 'a d,indle do,n
to being 'erel no'inal. The a'o$nt of da'ages depends $pon the nat$re of the
action and the evidence.
3.2.2 4i"(s o* (a!a)es
There are fo$r ?inds of +a'ages=
13
Damages
Damages
Contemptuou
s
Contemptuou
s
Nominal
Nominal
Substantial or
#rdinary
Substantial or
#rdinary
Exemplary$
%indicti&e or
"etributory
Exemplary$
%indicti&e or
"etributory
i. Co"te!+t.o.s (a!a)es are a,arded ,hen it is considered that an action
sho$ld never have been bro$ght.
ii. No!i"a# (a!a)es are a,arded ,here an action ,as a proper one to bring=
b$t the plaintiff has not s$ffered an special da'age= and does not desire
to get 'one into his poc?et.
S$ch da'ages are given ,here the p$rpose of the action is 'erel to
establish a right= no s$bstantial har' or loss having been s$ffered= for
e0a'ple= in cases of infringe'ents of absol$te rights of personal sec$rit
9e.g. assa$lt; and propert 9e.g. bare trespass= invasion of a right of
ease'ent;. No'inal da'ages are called so beca$se the don>t even bear
an relation to the cost and tro$ble of s$ing= and the s$' a,arded is so
s'all that it 'a be said to have Ano e0istence in point of B$antitC e.g.
ten r$pees= one shilling etc.
iii. S.bsta"tia#5 or Or(i"ary (a!a)es are a,arded ,here it is necessar to
fairl co'pensate the plaintiff for the in"$r he has s$stained. 1hatever
s$' is a,arded= ,hether large or s'all= '$st afford a fair 'eas$re of
co'pensation to the plaintiff ,ith reference to the act$al har' s$stained
b hi'
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The la, does not ai' at restitution b$t compensation. )ndeed the tr$e test
is that= ,hat s$' is afforded= $nder the circ$'stances of each partic$lar
case= a fair and reasonable co'pensation to the part ,ronged for the
in"$r done to hi'= the plaintiff>s o,n esti'ate is regarded as the
'a0i'$' li'it.
iv. E3e!+#ary5 Vi"(i&tive or Retrib.tory (a!a)es are a,arded ,herever
the ,rong or in"$r is of a grievo$s nat$re= done ,ith a high-hand= or is
acco'panied ,ith a deliberate intention to in"$re= or ,ith ,ords of
conte'pt and ab$se.
)t 'a happen that a ,rong is done to a 'an ,hich is not onl an in"$r in
the ordinar sense= b$t is in itself of so grave and reprehensible a
character= or is done $nder s$ch circ$'stances as to aggravate the in"$r
and i'port ins$lt or o$trage= that it is ne0t to i'possible to 'eas$re
da'ages b an strict arith'etic val$e= e.g. 4ross defa'ation@ sed$ction
of a 'anJs da$ghter ,ith deliberate fra$d@ a 'alicio$s trespass of land=
persisted in ,ith violent and inte'perate behavior@ assa$lt and false
i'prison'ent $nder colo$r of a pretended right@ 'alicio$s prosec$tion.
3.2.3 6e"era# a"( S+e&ia# 0a!a)es
3.2.3.1 6e"era# 0a!a)es
4eneral da'ages are s$ch as the la, ,ill pres$'e to be the nat$ral or probable
conseB$ences of the defendantJs acts. The need not be b proved evidence @ for
the arise b inference of la,= even tho$gh no act$al pec$niar has been s$ffered
or can be sho,n.
1/
3.2.3.2 S+e&ia# 0a!a)es
Special da'ages= on the other hand= are s$ch= as the la, ,ill not infer fro' the
nat$re of the act co'plained of@ the '$st therefore be specificall clai'ed on
the pleadings= and strictl proved at the trial. S$ch da'ages depend $pon the
special circ$'stances of the case= $pon the defendantJs position= $pon the cond$ct
of the third persons etc.
3.3 E**e&t o* La2 o* Torts i" the 1rese"t So&ia# Co"(itio"s i" I"(ia
1. Tort la, is still at a pri'itive stage in )ndia= there are vario$s reasons for
this= li?e=
• ,anchayats at the village level act as the pri'ar disp$te resol$tion
for$'= so the need to go to co$rt does not arise.
• The co$rts of la, are present onl in cities and Taluka places= ,hich
'a?es the co$rts less accessible and increases the cost of transportation for
the people living in r$ral )ndia.
• Another ca$se for this is the lac? of a,areness and ed$cation= people are
$na,are that there are re'edies available for the ,rong being done to
the' and the can approach the co$rt of la, for the sa'e.
• %igh co$rt fees and long proced$res to file a case co$pled ,ith high fees
de'anded b la,ers is another ca$se for lac? of litigation in tort la,.
• The co$rts of la, in )ndia tend to dis'iss the tort 'atters as trifle beca$se
of the sheer vol$'e of cases= ,hich are piled.
2. Changing Scenario
• %o,ever= the scenario in )ndia is changing rapidl= each da= the n$'ber
of cases filed $nder la, of torts is increasing.
• Medical negligence is fast e'erging as a field of specialt a'ong aspiring
la,ers as the n$'ber of s$its filed $nder this categor are inceasing.
3. Prevention= better than c$re
1(
• 1ith increasing a,areness abo$t ,rongs co''itted against an individ$al=
people are ta?ing care not to infringe the rights of other individ$als as the
'ight be s$ed for the sa'e= this is having a positive effect in protecting
privac of p$blic personalities li?e celebrities= sport stars= govern'ent
officials etc.
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4 Ro#e o* 7.(i&iary
The "$diciar has been criticiHed for being overl activist and overstepping its
"$risdiction. E creating constit$tional torts= the are acc$sed of $s$rping both
legislative and ad'inistrative f$nctions. Controvers f$rther arose ,hen "$dges
began to read s$ch obligations of the state into Article 21 of the Constit$tion of
)ndia to i'pose vicario$s liabilit on the state.
%o,ever= s$ch "$dicial activis' in
)ndia has been $sed for achieving social and distrib$tive "$stice.
There has been a significant debate a'ongst acade'ics and the "$diciar as to the
precise scope of= and level of fa$lt reB$ired to deter'ine that liabilit e0ists. This
can be seen in relation to the different approaches ta?en b the "$diciar in
vario$s co''on la, "$risdictions as to ho, the d$t of care in negligence sho$ld
be deter'ined. 6$dicial r$lings as to the nat$re of ,rongdoing 'a define for
societ as a ,hole ,hat the li'its of acceptable behavio$r act$all are. %o,ever=
the deterrent effect of tort la, is diffic$lt to 'eas$re. There are 'an factors that
have a significant bearing on ,hether the o$tco'e of a case has an real deterrent
effect= for e0a'ple p$blic a,areness and ,illingness of the p$blic to 'odif
behavio$r.
+riving on the p$blic high,a is a si'ple e0a'ple. +o drivers 'odif their
driving s$ch that it is safe beca$se of the fear of being s$ed in the civil co$rts
rather than the fear of being prosec$ted in the cri'inal co$rtsL )t is= ho,ever=
clear that professional bodies= li?e the &a, Societ= the )nstit$te of CA>s= and the
Medical Co$ncil= ta?e notice of co$rt decisions and alter professional practice
accordingl The vie, that la, and "$stice go hand-in-hand can= $nfort$natel= be
overstated.
1:
1: Ta?en fro' httpsFGGdspace.ndlr.ie on ( Nov. 14 at 3F34 a'.
1.
)n M.C. Mehta v. 8!) = 6$stice Ehag,ati said= A1e have to evolve ne, principles
and la do,n ne, nor's ,hich ,ill adeB$atel deal ,ith ne, proble's ,hich
arise in a highl ind$strialiHed econo'. 1e cannot allo, o$r "$dicial thin?ing to
be constr$cted b reference to the la, as it prevails in *ngland or for the 'atter
of that in an foreign co$ntr. 1e are certainl prepared to receive light fro'
,hatever so$rce it co'es b$t ,e have to b$ild o$r o,n "$rispr$dence.C
6$diciar freB$entl '$st ield to prag'atis' s$ch that the legal sste' can be
ad'inistered efficientl. This is partic$larl so in cri'inal la,= b$t also the case
in civil la,. So'eti'es= for e0a'ple= a litigant 'a not s$cceed in sec$ring a
re'ed even tho$gh a clear in"$stice has been done to hi' or her. These sorts of
decisions are freB$entl referred to as Ipolic> decisions. The )ndian "$diciar has
plaed a significant role in environ'ental protection and is ta?ing bold steps in
this regard e.g. Ehopal 4as Traged 15.4.
The "$diciar '$st ta?e into acco$nt the p$blic interest= or= as stated= p$blic
polic= e.g. if the plaintiff 'a not receive a f$ll re'ed or a re'ed at all. )t can
occ$r in relation to alleged ,rongs or fail$res co''itted b p$blic a$thorities=
,here the co$rts 'a find that no d$t of care is o,ed b the' to an individ$al
that s$ffers as a res$lt of that act or o'ission. Tort la, is also concerned ,ith
distrib$tive "$stice= ,hich is relates to distrib$ting the cost of the har' as broadl
as possible across societ.
The effect of this is that the in"$red plaintiff is granted a re'ed against a person=
other than the i''ediate ,rongdoer= ,ho is in a position to offset the costs
involved b passing the' on to others. This can occ$r thro$gh the ins$rance f$nd
or vicario$s liabilit in respect of e'ploers.
15
As stated earlier= tort la, not being codified is largel based on eB$it and "$stice
and th$s co'pletel relies on the good conscience of the appointed "$dges of the
)ndian "$diciar.
Co!+arative st.(y
.1 0i**ere"&e bet2ee" Tort a"( Cri!e
A tort is a ,rong infringing private or civil rights belonging to the individ$al=
,hile a cri'e is a breach of p$blic rights and d$ties ,hich affects the societ as a
,hole.
i. )n tort= the one ,ho co''its the ,rong has to co'pensate the aggrieved
part.
ii. )n cri'e= he is p$nished b the societ or State in the interest of societ=
prosec$tion and conseB$ent p$nish'ent is given ,ith a vie, to ,or? as a
deterrent and pro'ote p$blic interests b prevention of offences.
i. )n tort= the in"$red part in this o,n na'e cond$cts the proceedings.
ii. )n cri'e= the proceeding is ta?en b the state thro$gh the state= tho$gh the
are sated at the instance of the in"$red part and the g$ilt is p$nished b
the state.
i. )n tort da'ages a,arded are for the benefit of the in"$red part= to
co'pensate his losses as the are given to the in"$red individ$al.
ii. )n a cri'e= ,hen a fine is i'posed on the acc$sed it is not for the
co'pensation of the in"$red part b$t= it is in addition to the s$bstantive
sentence i'posed on hi'= ,hile the fine reverts to the state.
i. )n tort= the intention of the ,rong doer is i''aterial.
ii. )n cri'e= intention is of $t'ost i'portance= as cri'inal negligence ,ill not
a'o$nt to cri'e $nless acco'panied b cri'inal intention.
2:
i. )n tort= litigation ,ill be co'po$ndable.
ii. )n cri'inal= litigation ,ill not be co'po$ndable= e0cept in e0ceptions as
per Sec.32: Cr.PC of )PC.
i. )n tort= case ,ill be filed in a civil co$rt.
ii. )n cri'e= the case ,ill be files in a cri'inal co$rt.
i. )n tort= a person ,ho co''its Tort is a Tortfeasor.
ii. )n cri'e= person ,ho co''its the cri'e= is a cri'inal or offender.
.2 0i**ere"&e bet2ee" Tort a"( Co"tra&t
i. A tort is a violation of right in re'= i.e. of a right vested in so'e person
either personall or as a 'e'ber of a co''$nit # is available against the
,orld at large.
ii. A breach of contract is an infringe'ent of a right in persona'= i.e. of a
right available onl against so'e deter'inate person or bod and in ,hich
he co''$nit at large has no concern.
i. )n a tort= the d$t is one i'posed b la, and is o,ned to the co''$nit at
large.
ii. )n contract= the d$t is fi0ed b the consent and ,ill of the parties and it is
o,ed to definite persons.
i. )n an action for tort= the da'ages are al,as $nliB$idated.
ii. )n an action for breach of contract= the 'a be liB$idated beca$se in a
contract a specific s$' is stip$lated.
i. )n a tort= ,hen the in"$r is to a propert= the da'ages can be
co'pensated= b$t ,here the in"$r is to a person= feelings and the facts
disclose fra$d= 'alice= violence= cr$elt and the li?e.
ii. )n breach of contract the da'ages= are onl in the for' of co'pensation.
21
i. )n a tort a 'an is held for da'age arising fro' special circ$'stances of
,hich he had no prior ?no,ledge.
ii. )n a contract= if there are an special circ$'stances= and the are ,holl
$n?no,n to the part brea?ing the contract= then he is not liable for
da'ages d$e solel to the said special circ$'stances.
22
$ Co"&#.sio"
i. Adding the letter AsC does not 'a?e +a'ages= the pl$ral of +a'age= these
concepts are inter,oven b$t have t,o co'pletel different 'eanings.
ii. Eoth= +a'age # +a'ages for' an i'portant part of the la, of torts= and
are a part of re'edies that can be a,arded to $ndo the ,rong that has been
co''itted.
iii. +a'ages are of fo$r tpes= Conte'pt$o$s= No'inal= S$bstantial or
!rdinar # *0e'plar or retrib$tive.
iv. The la, of torts and the decisions ta?en $nder it are largel based on
6$stice= *B$it and 4ood Conscience.
v. )ndia does not have a codified la, for torts= and it has been observed ti'e
and again b notable persons in the acade'ia= "$diciar and scholars of
advocac that codifing the la, of torts ,o$ld lead to li'iting the scope of
the field and ,ill prove to be a hindrance to the deliver of 6$stice.
vi. There is a h$ge difference bet,een Cri'inal la, # Tort la, and the t,o
sho$ld not be conf$sed.
vii. There is large-scale oblivion and $na,areness abo$t the rights that people
en"o= being the citiHens of )ndia= d$e to illiterac and i'bibed fear of
"$diciar and legal proceedings.
viii. The co$rt of la, and legal proceedings are still $nable to reach to the
grassroots level in )ndia and this is greatl hindering the gro,th of o$r
co$ntr.
i0. Tort la, is a ,ide concept and eno$gh research has not been $nderta?en in
this field.
23
% S.))estio"s - Re&o!!e"(atio"s
i. There is a large-scale lac? of a,areness abo$t the re'edies available to he
co''on 'an and th$s he settles for accepting the ,rong done to hi'
rather than see?ing "$stice in the co$rt of la,.
ii. *no$gh research has not been cond$cted in this field and th$s reliable data
is not fo$nd in boo?s or thro$gh the internet= the govern'ent and
especiall the "$diciar= being an independent bod sho$ld $nderta?e
research in this field so as to have a better $nderstanding of the intricacies
of the s$b"ect.
iii. The vario$s obstacles standing in the ,a of cases being files $nder tort
la,= li?e the staggeringl lo, "$dge to pop$lation ratio= $navailabilit of
disp$te resol$tion 'ethods in r$ral )ndia and $naffordable services of a
la,er= sho$ld be resolved b $sing an prag'atic 'eans possible.
iv. )f the la, of torts is to be codified= then it sho$ld be thoro$ghl chec?ed
and sho$ld be $nli?e other la,s in )ndia= ,hich have a n$'ber of loop
holes.
v. The da'ages a,arded sho$ld not be of $nrealistic a'o$nts as ,as done in
the 8SA= b$t sho$ld be "$st eno$gh to set right= the ,rong that ,as
co''itted.
24
vi. &a, of Torts sho$ld be $nderta?en as a 'a"or field of la, in the ears to
co'e= and sho$ld be strea'lined and 'ade specific= ,ith ,or? being done
both on side of advocates= acade'ia= as ,ell as the "$diciar.
8 Bib#io)ra+hy
i. httpFGG,,,.,ashingtonpost.co'G,orldG
ii. httpFGGcontent.ti'e.co'Gti'eG,orldGarticle
iii. econo'icti'es.indiati'es.co'
iv. httpFGG,,,.ebc-india.co'G
v. httpFGG,,,.la,.cornell.ed$G,e0Gda'ages
vi. httpFGGe-la,reso$rces.co.$?G
vii. httpFGG$?.practicalla,.co'G
viii. httpFGG,,,.shortlandcha'bers.co.nHG
i0. httpFGG,,,.oc?advocates.co'G
0. httpFGGdefinitions.$slegal.co'G
2/
0i. httpFGGlegalcontent.inG
0ii. httpFGG,,,.ielrc.orgGcontent
0iii. Ratanlal # +hira"lal D &a, of Torts
0iv. Ra'as,a' )er>s D The &a, of Torts
0v. 6ohn M$rph # Christian 1itting D Street on Torts
2(
doc_986981938.docx
In the legal world, damage is defined as a loss or harm resulting from injury to a person, property or reputation. Damages, on the other hand, refers to compensation - such as a monetary judgment - provided to a person who has suffered a loss or harm due to the unlawful act or omission of another.
1
TABLE OF CONTENTS
Sr.No Topic Page No.
1 Abbreviations 3
2 Table of Cases 4
3 1. Research Methodolog
1.1. Relevance
1.2. !b"ective # Scope of St$d
1.3. %pothesis
1.4. &i'itations of Research
(
4 2. )ntrod$ction
2.1. *vol$tion # +evelop'ent
2.1.1. *vol$tion
2.1.2. +evelop'ent
2.2. Conte'porar Position
2.2.1. &a, of Torts )n )ndia
2.2.2. There is et No Code for Torts in )ndia
(-.
/ 3. )ndian &egal Conte0t # Present R$les # Reg$lations
3.1. 1hat is +a'age
3.1.1. +a'n$' Sine )n"$ria
3.1.2. )n"$ria Sine +a'n$'
3.1.3. &egal +a'age
3.1.4. Re'oteness of +a'age
3.2. 1hat are +a'ages
3.2.1. 2ro' ,here do +a'ages !riginate
3.2.2. 3inds of +a'ages
3.2.3. 4eneral # Special +a'ages
3.2.3.1. 4eneral +a'ages
3.2.3.2. Special +a'ages
3.3. *ffect of &a, !f Torts in the Present Social
Conditions in )ndia
5-1(
( 4. Role or 6$diciar 17-1.
7 /. Co'parative St$d
/.1. +ifference bet,een Tort and Cri'e
/.2. +ifference bet,een Tort and Contract
15-21
. (. Concl$sion 22
5 7. S$ggestions # Reco''endations 23
ABBREVIATIONS
2
Sr.No. Abbreviation
s
Meaning
1 # And
2 4ovt. 4overn'ent
3 8SA 8nited States !f A'erica
4 83 8nited 3ingdo'
/ 8!) 8nion !f )ndia
( )PC )ndian Penal Code
7 Cr.PC Cri'inal Proced$re Code
3
TABLE OF CASES
Sr.No Case
1 Satish Chandra v Ra' +aal 9152:;
2 4lo$cester 4ra''er School case
3 8ndergro$nd ,ater cases
4 Ashby v White
Si!!o"s v British Stee#
$ Ra'eshar v )shan Chandra
% t tagged as a personal ,rong.
2.2 Co"te!+orary 1ositio"
2.2.1 La2 o* Torts i" I"(ia
+$ring Eritish r$le= the Acts of parlia'ent governed co$rts in )ndia
/
the co$rts of
la, ,ere directed to act according to "$stice= eB$it and good conscience if there
,as no specific enact'ent applicable to the disp$te at hand. 1ith regards to s$its
for da'ages in torts= co$rts follo,ed the *nglish co''on la, so far as it ,as not
beond the principles of eB$it= "$stice and good conscience.
(
The co$rts of la,
,ere given the freedo' to depart fro' the *nglish co''on la, ,hen the did
not see' to be in consonance ,ith the 'atter.
7
/ S$pra Note 3.
( Satish Chandra v Ram Dayal 9152:;
7 Action for Slander= +octrine of Co''on *'plo'ent.
7
2.2.2 There is yet No Co(e *or Torts i" I"(ia.
A code $ndo$btedl is $sef$l= ho,ever here it is i'portant to recogniHe that this
branch of la, is still $ndergoing gro,th and develop'ent= hence it ,o$ld be
diffic$lt to prepare a code= 'oreover once a code is prepared= it constricts the
la,s= thereb narro,ing the scope of the la,s and leaving little space for
interpretation.
)t '$st be bro$ght into notice that in 1..(= Sir 2 Polloc? prepared a bill ?no,n as
IThe )ndian Civil 1rongs Eill> at the instance of the 4ovt. of )ndia@ it ,as
ho,ever not ta?en $p for legislation.
.
!ne of the first and i'portant
reco''endations 'ade b the la, co''ission appointed b 4ovt. of )ndia for
legislation is on the s$b"ect of liabilit of the 4ovt. for torts of its servants.
%on>ble 6$stice R.M. Sahai observed that=
“Truly speaking the entire law of torts is founded and structured on morality.
Therefore it would !e primitive to close strictly or close finally the ever
e"panding and growing hori#on of tortious lia!ility. $ven for social development
orderly growth of the society and the culture the li!eral approach to tortuous
lia!ility !y court would !e conducive.”
6$stice Sahai rightl states that codifing the la, of torts ,o$ld deter the gro,th
and li'it the scope of the "$diciar in deciding on 'atters ,ere a tort is
co''itted.
The reason that the codification of la,s has et not been initiated in )ndia is that
there is little litigation in this field and th$s the need for i'ple'entation of the
la,s rarel arises. Also the high co$rt fees= dela of co$rts in decision 'a?ing=
the sheer a'o$nt of litigation in the )ndian co$rts= and the staggeringl lo, "$dge
. Ta?en fro' httpFGG,,,.legalserviceindia.co'GarticleGl125-Torts-)n-)ndia.ht'l on
Nove'ber /= 2:14 at 7F34 p'.
.
to pop$lation ratio of 13F1:::::: i.e There are onl 13 "$dges to ever 1: la?h
people
5
in the co$ntr are the reasons for the lo, litigation in )ndian co$rts.
3 I"(ia" Le)a# Co"te3t - 1rese"t R.#es A"( Re).#atio"s
3.1 What is 0a!a)e
+a'age is the loss ca$sed b one person to another or to his propert= either ,ith
the intention of in"$ring hi'= ,ith negligence and carelessness= or b inevitable
accident. The loss ,hich so'e one has s$stained= and the gain ,hich he has
failed to 'a?e. +a'age is the inseverable seB$ence of in"$r. Th$s da'age is the
act$al alteration that is ta?en place= and the har' that has been ca$sed beca$se of
the alteration.
3.1.1 0a!".! Si"e I",.ria
+a'n$' sine in"$ria 'eans an act$al and significant loss ,itho$t infringe'ent
of an legal right. )n s$ch case no action lies. 2or ordinar loss in 'one or
'oneJs ,orth does not of itself co'pose legal da'age. &oss or har' is not a
good gro$nd of action= $nless it is the res$lt of a species of ,rong of ,hich the
la, ta?es grasp.
The %loucester %rammer School case= and the &nderground water cases of no
action lies for 'ere da'age= ho,ever s$bstantial= ca$sed ,itho$t breach of la,.
There are 'oral ,rongs for ,hich the la, gives no re'ed= tho$gh the ca$se
great loss or detri'ent.
5 Ta?en fro' httpFGGarticles.econo'icti'es.indiati'es.co' on Nove'ber /= 2:14.
5
3.1.2 I",.ria Si"e 0a!".!
)n"$ria sine da'n$'= therefore= 'eans an infringe'ent of a legal private right
,itho$t an act$al loss or da'age. )n this case the person ,hose right is infringed
has a good ca$se of action.
)t is not necessar for hi' to prove an special da'age= beca$se ever in"$r
i'ports da'age ,hen a 'an is thereb hindered of his right. Therefore= act$al
perceptible da'age is not indispensable as the fo$ndation of an action @ it is
s$fficient to sho, the violation of a right in ,hich case the la, ,ill pres$'e
da'age.
3.1.3 Le)a# (a!a)e
)t is not ever da'age= ,hich is da'age in the ee of the la,. There 'a be a
,rong done to a person= b$t= if it has not ca$sed= ,hat the la, ter's act$al legal
da'age= to hi'= there is no tort in respect of ,hich an action is 'aintainable.
&egal da'age is neither identical ,ith act$al da'age= nor is it necessaril
pec$niar. *ver invasion of a plaintiffJs right= or $na$thoriHed interference ,ith
his propert= i'ports legal da'age@ that is= altho$gh a person in"$red 'a not
s$ffer an pec$niar loss b the ,rongf$l act= et if it is sho,n that there ,as a
violation of so'e right= the la, ,ill pres$'e da'age.
*g. 'sh!y v (hite
3.1.4 Re!ote"ess o* 0a!a)e
8pon breach of d$t the clai'ant '$st see? to establish ho, that res$lt to in"$r
or da'age ,hat ,o$ld be referred to as ca$sation@ ,here in"$r or da'age
s$fficientl has close connection ,ith the breach refers to re'oteness.
)n the case involving Simmons v )ritish Steel plc
the clai'ant fell and h$rt his
head. This led hi' to e0perience depression and da'ages to the s?in. This ,as
not beca$se of the original da'age b$t rather d$e to anger. The co$rts decided
1:
that the clai'ant ,as entitled to co'pensation both for the accident and for the
s$bseB$ent in"$ries.
)ndian Case - Rameshar v *shan Chandra
2or
*0a'ple
=
K travels to +adar station in M$'bai= as best 'eans of transport ,o$ld be b
train. At so'e point she finds that the train has been derailed o$tside the station
th$s bloc?ing the line and 'a?ing it i'possible for other trains to r$n on that line.
This 'a?es K ret$rn ho'e. )n the afternoon= an intr$der b$rglarises her ho$se and
shoots her ar' and leg. 2ro' a nat$ral point of vie, K ,o$ld clai' that her
absence fro' ,or? ,as beca$se her train got derailed.
!n the contrar= it ,o$ld not be nat$ral for her to clai' that she got shot b the
intr$der beca$se she ,as present at her ho'e and had the train not been derailed
she ,o$ld still be at ,or? and th$s avoided the intr$der= and res$ltant da'age
,as beca$se her train ,as derailed. !f co$rse= one ,o$ld arg$e that had she
ca$ght her train the incident ,o$ld not have occ$rred since she ,o$ld not have
ret$rned ho'e.
)t is conc$red that there arises serio$s do$bts on the e0tent to ,hich the shooting
lin?s to the derailed train. )n legal conte0t= it can be said that the act of shooting is
Atoo re'ote a conseB$enceC of the derail'ent.
3.2 What are 0a!a)es
+a'ages are the pec$niar satisfaction= ,hich a plaintiff 'a obtain b s$ccess
in an action. The defendant is liable for the nat$ral 9or probable; and ordinar
conseB$ences of his act. %e is liable for s$ch da'ages as he in fact conte'plated
or o$ght to have conte'plated ,hen he co''itted the tort. The defendant is
liable if the act is of s$ch a nat$re that in"$rio$s conseB$ences 'ight have been
anticipated fro' it.
11
Re'edies
Re'edies
Judicial
Judicial
Damages
Damages
Contemptous;
Nominal;
Substantial;
Exemplary
Contemptous;
Nominal;
Substantial;
Exemplary
Injunction
Injunction
Interim;
Temporary;
Perpetual;
Mandatory
Interim;
Temporary;
Perpetual;
Mandatory
ExtraJudicial
ExtraJudicial
Expulsion o!
Trespasser; "eentry
on land; "ecaption o!
goods;distress
damage jesant;
Abatement of
nusiance
Expulsion o!
Trespasser; "eentry
on land; "ecaption o!
goods;distress
damage jesant;
Abatement of
nusiance
3.2.1 Fro! 2here (o 0a!a)es Ori)i"ate
+a'ages are li'ited to the loss ,hich a plaintiff has act$all s$stained. %e is
co'pensated for=
i. An da'age ,hich is the nat$ral or the probable conseB$ence of an act
s$ch as that done b the defendant= ,hether the defendant conte'plated
s$ch a conseB$ence or not.
ii. An da'age ,hich the defendant did in fact conte'plate at the ti'e ,hen
he co''itted the tort as a nat$ral or probable conseB$ence of s$ch tort.
iii. An da'age ,hich is the probable res$lt of the defndants act= providing
that ,henever the probablit of s$ch a res$lt ens$ing depends $pon the
special circ$'stances of the partic$lar case= the defendant= ,ill not be
liable to co'pensate the plaintiff for s$ch res$lt= $nless he had notice of
s$ch special circ$'stances at the ti'e of his co''itting the tort.
E Inat$ral conseB$ence> 'eans s$ch a res$lt= as '$st follo, fro' the
defendantJs act in the ordinar co$rse of nat$re= in short= a conseB$ence ,hich is
phsicall necessar@ b Iprobable conseB$ence>= s$ch a conseB$ence as= h$'an
nat$re being ,hat it is= $s$all follo,s fro' s$ch an act as the defendantJs= or so
12
freB$entl follo,s that a person of ordinar intelligence and foresight ,o$ld
reasonabl anticipate s$ch a res$lt.
Th$s the defendant is onl liable for s$ch da'ages as he in fact conte'plated or
o$ght to have conte'plated ,hen he co''itted the tort. All other da'age ,ill be
e0cl$ded as being too re'ote.
2or *0a'ple in +anden!argh v J Trua"
1here the defendant too? $p a pic?-a0e and chased the plaintiff>s servant bo=
,ho r$shed for shelter into his 'aster>s shop and in so doing ?noc?ed ont the
fa$cet fro' a cas? of ,ine ,hereb the ,ine ran o$t= and ,as lost= the defendant
,as clearl a ,rong-door in p$rs$ing the bo= and here re'oteness of da'age is
not applicable.
The e0pression J 'eas$re of da'ages J 'eans the scale or r$le b reference to
,hich the a'o$nt of da'ages to be recovered is= in an given case= to be
assessed. +a'ages 'a arise to al'ost an a'o$nt= or the 'a d,indle do,n
to being 'erel no'inal. The a'o$nt of da'ages depends $pon the nat$re of the
action and the evidence.
3.2.2 4i"(s o* (a!a)es
There are fo$r ?inds of +a'ages=
13
Damages
Damages
Contemptuou
s
Contemptuou
s
Nominal
Nominal
Substantial or
#rdinary
Substantial or
#rdinary
Exemplary$
%indicti&e or
"etributory
Exemplary$
%indicti&e or
"etributory
i. Co"te!+t.o.s (a!a)es are a,arded ,hen it is considered that an action
sho$ld never have been bro$ght.
ii. No!i"a# (a!a)es are a,arded ,here an action ,as a proper one to bring=
b$t the plaintiff has not s$ffered an special da'age= and does not desire
to get 'one into his poc?et.
S$ch da'ages are given ,here the p$rpose of the action is 'erel to
establish a right= no s$bstantial har' or loss having been s$ffered= for
e0a'ple= in cases of infringe'ents of absol$te rights of personal sec$rit
9e.g. assa$lt; and propert 9e.g. bare trespass= invasion of a right of
ease'ent;. No'inal da'ages are called so beca$se the don>t even bear
an relation to the cost and tro$ble of s$ing= and the s$' a,arded is so
s'all that it 'a be said to have Ano e0istence in point of B$antitC e.g.
ten r$pees= one shilling etc.
iii. S.bsta"tia#5 or Or(i"ary (a!a)es are a,arded ,here it is necessar to
fairl co'pensate the plaintiff for the in"$r he has s$stained. 1hatever
s$' is a,arded= ,hether large or s'all= '$st afford a fair 'eas$re of
co'pensation to the plaintiff ,ith reference to the act$al har' s$stained
b hi'
14
The la, does not ai' at restitution b$t compensation. )ndeed the tr$e test
is that= ,hat s$' is afforded= $nder the circ$'stances of each partic$lar
case= a fair and reasonable co'pensation to the part ,ronged for the
in"$r done to hi'= the plaintiff>s o,n esti'ate is regarded as the
'a0i'$' li'it.
iv. E3e!+#ary5 Vi"(i&tive or Retrib.tory (a!a)es are a,arded ,herever
the ,rong or in"$r is of a grievo$s nat$re= done ,ith a high-hand= or is
acco'panied ,ith a deliberate intention to in"$re= or ,ith ,ords of
conte'pt and ab$se.
)t 'a happen that a ,rong is done to a 'an ,hich is not onl an in"$r in
the ordinar sense= b$t is in itself of so grave and reprehensible a
character= or is done $nder s$ch circ$'stances as to aggravate the in"$r
and i'port ins$lt or o$trage= that it is ne0t to i'possible to 'eas$re
da'ages b an strict arith'etic val$e= e.g. 4ross defa'ation@ sed$ction
of a 'anJs da$ghter ,ith deliberate fra$d@ a 'alicio$s trespass of land=
persisted in ,ith violent and inte'perate behavior@ assa$lt and false
i'prison'ent $nder colo$r of a pretended right@ 'alicio$s prosec$tion.
3.2.3 6e"era# a"( S+e&ia# 0a!a)es
3.2.3.1 6e"era# 0a!a)es
4eneral da'ages are s$ch as the la, ,ill pres$'e to be the nat$ral or probable
conseB$ences of the defendantJs acts. The need not be b proved evidence @ for
the arise b inference of la,= even tho$gh no act$al pec$niar has been s$ffered
or can be sho,n.
1/
3.2.3.2 S+e&ia# 0a!a)es
Special da'ages= on the other hand= are s$ch= as the la, ,ill not infer fro' the
nat$re of the act co'plained of@ the '$st therefore be specificall clai'ed on
the pleadings= and strictl proved at the trial. S$ch da'ages depend $pon the
special circ$'stances of the case= $pon the defendantJs position= $pon the cond$ct
of the third persons etc.
3.3 E**e&t o* La2 o* Torts i" the 1rese"t So&ia# Co"(itio"s i" I"(ia
1. Tort la, is still at a pri'itive stage in )ndia= there are vario$s reasons for
this= li?e=
• ,anchayats at the village level act as the pri'ar disp$te resol$tion
for$'= so the need to go to co$rt does not arise.
• The co$rts of la, are present onl in cities and Taluka places= ,hich
'a?es the co$rts less accessible and increases the cost of transportation for
the people living in r$ral )ndia.
• Another ca$se for this is the lac? of a,areness and ed$cation= people are
$na,are that there are re'edies available for the ,rong being done to
the' and the can approach the co$rt of la, for the sa'e.
• %igh co$rt fees and long proced$res to file a case co$pled ,ith high fees
de'anded b la,ers is another ca$se for lac? of litigation in tort la,.
• The co$rts of la, in )ndia tend to dis'iss the tort 'atters as trifle beca$se
of the sheer vol$'e of cases= ,hich are piled.
2. Changing Scenario
• %o,ever= the scenario in )ndia is changing rapidl= each da= the n$'ber
of cases filed $nder la, of torts is increasing.
• Medical negligence is fast e'erging as a field of specialt a'ong aspiring
la,ers as the n$'ber of s$its filed $nder this categor are inceasing.
3. Prevention= better than c$re
1(
• 1ith increasing a,areness abo$t ,rongs co''itted against an individ$al=
people are ta?ing care not to infringe the rights of other individ$als as the
'ight be s$ed for the sa'e= this is having a positive effect in protecting
privac of p$blic personalities li?e celebrities= sport stars= govern'ent
officials etc.
17
4 Ro#e o* 7.(i&iary
The "$diciar has been criticiHed for being overl activist and overstepping its
"$risdiction. E creating constit$tional torts= the are acc$sed of $s$rping both
legislative and ad'inistrative f$nctions. Controvers f$rther arose ,hen "$dges
began to read s$ch obligations of the state into Article 21 of the Constit$tion of
)ndia to i'pose vicario$s liabilit on the state.
%o,ever= s$ch "$dicial activis' in
)ndia has been $sed for achieving social and distrib$tive "$stice.
There has been a significant debate a'ongst acade'ics and the "$diciar as to the
precise scope of= and level of fa$lt reB$ired to deter'ine that liabilit e0ists. This
can be seen in relation to the different approaches ta?en b the "$diciar in
vario$s co''on la, "$risdictions as to ho, the d$t of care in negligence sho$ld
be deter'ined. 6$dicial r$lings as to the nat$re of ,rongdoing 'a define for
societ as a ,hole ,hat the li'its of acceptable behavio$r act$all are. %o,ever=
the deterrent effect of tort la, is diffic$lt to 'eas$re. There are 'an factors that
have a significant bearing on ,hether the o$tco'e of a case has an real deterrent
effect= for e0a'ple p$blic a,areness and ,illingness of the p$blic to 'odif
behavio$r.
+riving on the p$blic high,a is a si'ple e0a'ple. +o drivers 'odif their
driving s$ch that it is safe beca$se of the fear of being s$ed in the civil co$rts
rather than the fear of being prosec$ted in the cri'inal co$rtsL )t is= ho,ever=
clear that professional bodies= li?e the &a, Societ= the )nstit$te of CA>s= and the
Medical Co$ncil= ta?e notice of co$rt decisions and alter professional practice
accordingl The vie, that la, and "$stice go hand-in-hand can= $nfort$natel= be
overstated.
1:
1: Ta?en fro' httpsFGGdspace.ndlr.ie on ( Nov. 14 at 3F34 a'.
1.
)n M.C. Mehta v. 8!) = 6$stice Ehag,ati said= A1e have to evolve ne, principles
and la do,n ne, nor's ,hich ,ill adeB$atel deal ,ith ne, proble's ,hich
arise in a highl ind$strialiHed econo'. 1e cannot allo, o$r "$dicial thin?ing to
be constr$cted b reference to the la, as it prevails in *ngland or for the 'atter
of that in an foreign co$ntr. 1e are certainl prepared to receive light fro'
,hatever so$rce it co'es b$t ,e have to b$ild o$r o,n "$rispr$dence.C
6$diciar freB$entl '$st ield to prag'atis' s$ch that the legal sste' can be
ad'inistered efficientl. This is partic$larl so in cri'inal la,= b$t also the case
in civil la,. So'eti'es= for e0a'ple= a litigant 'a not s$cceed in sec$ring a
re'ed even tho$gh a clear in"$stice has been done to hi' or her. These sorts of
decisions are freB$entl referred to as Ipolic> decisions. The )ndian "$diciar has
plaed a significant role in environ'ental protection and is ta?ing bold steps in
this regard e.g. Ehopal 4as Traged 15.4.
The "$diciar '$st ta?e into acco$nt the p$blic interest= or= as stated= p$blic
polic= e.g. if the plaintiff 'a not receive a f$ll re'ed or a re'ed at all. )t can
occ$r in relation to alleged ,rongs or fail$res co''itted b p$blic a$thorities=
,here the co$rts 'a find that no d$t of care is o,ed b the' to an individ$al
that s$ffers as a res$lt of that act or o'ission. Tort la, is also concerned ,ith
distrib$tive "$stice= ,hich is relates to distrib$ting the cost of the har' as broadl
as possible across societ.
The effect of this is that the in"$red plaintiff is granted a re'ed against a person=
other than the i''ediate ,rongdoer= ,ho is in a position to offset the costs
involved b passing the' on to others. This can occ$r thro$gh the ins$rance f$nd
or vicario$s liabilit in respect of e'ploers.
15
As stated earlier= tort la, not being codified is largel based on eB$it and "$stice
and th$s co'pletel relies on the good conscience of the appointed "$dges of the
)ndian "$diciar.
Co!+arative st.(y
.1 0i**ere"&e bet2ee" Tort a"( Cri!e
A tort is a ,rong infringing private or civil rights belonging to the individ$al=
,hile a cri'e is a breach of p$blic rights and d$ties ,hich affects the societ as a
,hole.
i. )n tort= the one ,ho co''its the ,rong has to co'pensate the aggrieved
part.
ii. )n cri'e= he is p$nished b the societ or State in the interest of societ=
prosec$tion and conseB$ent p$nish'ent is given ,ith a vie, to ,or? as a
deterrent and pro'ote p$blic interests b prevention of offences.
i. )n tort= the in"$red part in this o,n na'e cond$cts the proceedings.
ii. )n cri'e= the proceeding is ta?en b the state thro$gh the state= tho$gh the
are sated at the instance of the in"$red part and the g$ilt is p$nished b
the state.
i. )n tort da'ages a,arded are for the benefit of the in"$red part= to
co'pensate his losses as the are given to the in"$red individ$al.
ii. )n a cri'e= ,hen a fine is i'posed on the acc$sed it is not for the
co'pensation of the in"$red part b$t= it is in addition to the s$bstantive
sentence i'posed on hi'= ,hile the fine reverts to the state.
i. )n tort= the intention of the ,rong doer is i''aterial.
ii. )n cri'e= intention is of $t'ost i'portance= as cri'inal negligence ,ill not
a'o$nt to cri'e $nless acco'panied b cri'inal intention.
2:
i. )n tort= litigation ,ill be co'po$ndable.
ii. )n cri'inal= litigation ,ill not be co'po$ndable= e0cept in e0ceptions as
per Sec.32: Cr.PC of )PC.
i. )n tort= case ,ill be filed in a civil co$rt.
ii. )n cri'e= the case ,ill be files in a cri'inal co$rt.
i. )n tort= a person ,ho co''its Tort is a Tortfeasor.
ii. )n cri'e= person ,ho co''its the cri'e= is a cri'inal or offender.
.2 0i**ere"&e bet2ee" Tort a"( Co"tra&t
i. A tort is a violation of right in re'= i.e. of a right vested in so'e person
either personall or as a 'e'ber of a co''$nit # is available against the
,orld at large.
ii. A breach of contract is an infringe'ent of a right in persona'= i.e. of a
right available onl against so'e deter'inate person or bod and in ,hich
he co''$nit at large has no concern.
i. )n a tort= the d$t is one i'posed b la, and is o,ned to the co''$nit at
large.
ii. )n contract= the d$t is fi0ed b the consent and ,ill of the parties and it is
o,ed to definite persons.
i. )n an action for tort= the da'ages are al,as $nliB$idated.
ii. )n an action for breach of contract= the 'a be liB$idated beca$se in a
contract a specific s$' is stip$lated.
i. )n a tort= ,hen the in"$r is to a propert= the da'ages can be
co'pensated= b$t ,here the in"$r is to a person= feelings and the facts
disclose fra$d= 'alice= violence= cr$elt and the li?e.
ii. )n breach of contract the da'ages= are onl in the for' of co'pensation.
21
i. )n a tort a 'an is held for da'age arising fro' special circ$'stances of
,hich he had no prior ?no,ledge.
ii. )n a contract= if there are an special circ$'stances= and the are ,holl
$n?no,n to the part brea?ing the contract= then he is not liable for
da'ages d$e solel to the said special circ$'stances.
22
$ Co"&#.sio"
i. Adding the letter AsC does not 'a?e +a'ages= the pl$ral of +a'age= these
concepts are inter,oven b$t have t,o co'pletel different 'eanings.
ii. Eoth= +a'age # +a'ages for' an i'portant part of the la, of torts= and
are a part of re'edies that can be a,arded to $ndo the ,rong that has been
co''itted.
iii. +a'ages are of fo$r tpes= Conte'pt$o$s= No'inal= S$bstantial or
!rdinar # *0e'plar or retrib$tive.
iv. The la, of torts and the decisions ta?en $nder it are largel based on
6$stice= *B$it and 4ood Conscience.
v. )ndia does not have a codified la, for torts= and it has been observed ti'e
and again b notable persons in the acade'ia= "$diciar and scholars of
advocac that codifing the la, of torts ,o$ld lead to li'iting the scope of
the field and ,ill prove to be a hindrance to the deliver of 6$stice.
vi. There is a h$ge difference bet,een Cri'inal la, # Tort la, and the t,o
sho$ld not be conf$sed.
vii. There is large-scale oblivion and $na,areness abo$t the rights that people
en"o= being the citiHens of )ndia= d$e to illiterac and i'bibed fear of
"$diciar and legal proceedings.
viii. The co$rt of la, and legal proceedings are still $nable to reach to the
grassroots level in )ndia and this is greatl hindering the gro,th of o$r
co$ntr.
i0. Tort la, is a ,ide concept and eno$gh research has not been $nderta?en in
this field.
23
% S.))estio"s - Re&o!!e"(atio"s
i. There is a large-scale lac? of a,areness abo$t the re'edies available to he
co''on 'an and th$s he settles for accepting the ,rong done to hi'
rather than see?ing "$stice in the co$rt of la,.
ii. *no$gh research has not been cond$cted in this field and th$s reliable data
is not fo$nd in boo?s or thro$gh the internet= the govern'ent and
especiall the "$diciar= being an independent bod sho$ld $nderta?e
research in this field so as to have a better $nderstanding of the intricacies
of the s$b"ect.
iii. The vario$s obstacles standing in the ,a of cases being files $nder tort
la,= li?e the staggeringl lo, "$dge to pop$lation ratio= $navailabilit of
disp$te resol$tion 'ethods in r$ral )ndia and $naffordable services of a
la,er= sho$ld be resolved b $sing an prag'atic 'eans possible.
iv. )f the la, of torts is to be codified= then it sho$ld be thoro$ghl chec?ed
and sho$ld be $nli?e other la,s in )ndia= ,hich have a n$'ber of loop
holes.
v. The da'ages a,arded sho$ld not be of $nrealistic a'o$nts as ,as done in
the 8SA= b$t sho$ld be "$st eno$gh to set right= the ,rong that ,as
co''itted.
24
vi. &a, of Torts sho$ld be $nderta?en as a 'a"or field of la, in the ears to
co'e= and sho$ld be strea'lined and 'ade specific= ,ith ,or? being done
both on side of advocates= acade'ia= as ,ell as the "$diciar.
8 Bib#io)ra+hy
i. httpFGG,,,.,ashingtonpost.co'G,orldG
ii. httpFGGcontent.ti'e.co'Gti'eG,orldGarticle
iii. econo'icti'es.indiati'es.co'
iv. httpFGG,,,.ebc-india.co'G
v. httpFGG,,,.la,.cornell.ed$G,e0Gda'ages
vi. httpFGGe-la,reso$rces.co.$?G
vii. httpFGG$?.practicalla,.co'G
viii. httpFGG,,,.shortlandcha'bers.co.nHG
i0. httpFGG,,,.oc?advocates.co'G
0. httpFGGdefinitions.$slegal.co'G
2/
0i. httpFGGlegalcontent.inG
0ii. httpFGG,,,.ielrc.orgGcontent
0iii. Ratanlal # +hira"lal D &a, of Torts
0iv. Ra'as,a' )er>s D The &a, of Torts
0v. 6ohn M$rph # Christian 1itting D Street on Torts
2(
doc_986981938.docx