Law of Torts 2003

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LAW OF TORTS & OTHER ACTS

By

V R K Murty

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Law of TortsTort: The term tort is the French equivalent of

the English word wrong and the Roman termderelict.' The word tort is derived from Latinterm tortum to twist and implies conduct whichis twisted or tortuous. It is practiced in India as

per British law of Torts. It now means a breach ofsome duty independent of contract giving rise tocivil cause of action and for which compensationis recoverable. The person committing a tort or

wrong is called a tort-feaseror wrong doer. Grantof exemplary damages in certain cases will showdeterrence of wrong doers

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Law of TortsTort and contract:

Sl. No Tort Contract

1 Inflicted against or without

consent

Founded on consent

2 No privity needed Necessitates privity

3 Motive of breach is often taken

into consideration

In breach of contract motive of breach

immaterial

4 Law of torts is aimed at allocation

or prevention of losses

Contract aims to see that the promises

made under a contract are performed

5 For action in tort to property is

same as in contract. But injury to

person, character, feelings and thefacts disclose improper motive or

conduct such as fraud, violence,

cruelty or like which aggravates

plaintiffs injury, he may be awarded

aggravated damages

In a breach of contract damages are

only a compensation

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Tort and contract:

Sl. No Tort Contract

6 Tort is violation of right in Rem i.e.

Right vested in some determinate

person, either personally or as a

member of a community and is

available against the world at large

Breach of contract is an infringement in

personam i.e. right available only

against a determinate person or body

7 In tort, the duty is one imposed by

the law and is owned to the

community at large

In contract the duty is fixed by the will

and consent of the parties

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E.g. A assaults B or damages Bs property

without lawful cause or excuse, it is tort.

A father employs a surgeon to attend his son.

The son is injured by unskillful treatment.

Here, there is a contract between the fatherand surgeon and not between the surgeon

and son. The father may therefore sue the

surgeon in contract, but the son may sue the

surgeon in tort

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Law of TortsMrs. Maya Bhatia vs. New Delhi Municipal

corporation (AIR 1998);The Supreme Court held that A builder sold flatsin a building top four floors of which weredemolished by the Municipal corporation as theywere constructed in violation of building

regulations. The purchasers of the flats were notinformed of the illegality by the builder. TheSupreme Court held that each of the purchaserwas entitled to return of the amount paid by him

plus escalation charges and having regard to allcircumstances each flat owner was allowed toreceive Rs.60 lakhs from the builder. This is a caseof damage in tort.

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Law of TortsPunjab National bank vs. De Boonville (1992):

The court observed that an insurance brokeror to those who exercise any otherprofessional calling and to other professionalactivities which they carry on besides giving

advice is liable both in contract and tort.

An exception clause in a contract will beavailable to the defendant provided it is

widely worded and specifically excludes orlimits the liability for damages due tonegligence.

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Law of TortsTort and quasi-contract: Quasi contracts cover

those situations where a person is held liableto another without any agreement for moneyor benefit received by him to which the otherperson is better entitled. The obligations

under quasi-contract are imposed as in tortand not under an agreement in contract.

E.g. A pays money under mistake to B andB is under an obligation to refund it to Aeven though the payment is voluntary and isnot induced by any fraud or misrepresentation

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Tort and Crime:

Firstly: tort is an infringement or privation of the

private or civil rights belonging to individuals/

bodies considered as individuals. Crime is a

breach of public rights and duties which affectwhole community

Secondly: In tort the wrong doer has to

compensate the injured party, where as in thecrime, he is punished by the State in the

interests of the society

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Tort and Crime:

Thirdly: In tort the action is brought by injured

party; in crime the proceedings are conducted

in the name of State

Some wrongs are torts and crimes e.g.Assault, libel, theft, mischief to property. The

wrong doer may be ordered in civil action to

make compensation to the injured party andbe punished criminally by imprisonment or

fine.

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Constituents of torts: To constitute a tort or

civil injury;

i) There must be a wrongful act committed by

a person

ii) The wrongful act must give rise to legaldamage or actual damage

iii) The wrongful act must be of such nature as

to give rise to a legal remedy in the form ofaction for damages

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Wrongful Act: An act which, prima facie

appears to be innocent may become tortuous

E.g. Erection of fence in ones own land which

obstructs light to a neighbours house

Public rights: These belong in common to themembers of the State generally

Private Rights: 1) Right of reputation 2) Rights

of bodily safety and freedom 3) rights ofproperty

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Law of TortsDamage: The harm or loss suffered or

presumed to be suffered by a person as aresult of wrongful act of another

E.g. Slanderous words- Action is due if proved

Riding over somebodys ground- Action due

False imprisonment-Action due

Refusal to register vote by returning officer-

Action due

Banker refusing customers cheque when

sufficient funds are held-Action due

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Interception of percolating water If not for

the benefit of his land no action is due

Setting up of rival school- No action due

Driving rival trader out of market-No action

dueUse of title by spouse after dissolution of

marriage- No action due

Using name of another mans house- No actiondue

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Some General elements of Torts:

1. Act of omission:

a) Not rescuing a stranger child drowning- No

action due

b) security person employed to safeguarddrowning persons- Action lies

2. Voluntary and involuntary Acts:

Involuntary actions/ omissions are those wherethe actor lacks the power to control his actions

E.g. An involuntary trespass is not tort

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3. Mental Elements:

i) Malice- Intentional doing of wrongful act,

Improper motive

ii) Intention, Negligence and recklessnessiii) Motive- Ulterior object or purpose

4. Malfeasance- Commission of unlawful act

Misfeasance- Improper performance of lawful actNonfeasance- omission to perform obligation to

perform

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Law of TortsSome General elements of Torts:

5. Fault:E.g. 1. An enterprise engaged in a hazardous or

dangerous activity is liable for the harmresulting from the operation of such facility(liability without fault)

2. Liability of a master for the tort committedby his servants- factories act, workman

compensation act (liability without fault)Fault in the form of intention, negligence ormotive is essential to fasten liability

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Personal Capacity: A corporation is a legalperson (Name, perpetuity of existence and

capacity to sue and be sued). A corporation is

liable for torts committed by its agents orservants, when the tort is committed in the

course of doing an act which is within the

scope of powers of the corporation

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Accord and satisfaction: It is an agreementbetween two or more persons and acts as a

bar to the right of action

Acquiescence: When a person who knowsthat he is entitled to enforce a right, neglects

to do so for a length of time, waives or

abandons his right

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Liability by relation: Master and servant-relationship must be established first.

E.g. Hospital authorities are liable for negligence

of their medical staff. But if the servant isacting to do a wrong thing intentionally he is

liable for action

Masters liability to servant: Master will beliable for the injuries received by the servant

during his service of his duties

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Masters right to recover damages fromservant: A servant is liable for the

consequences or wrongful omissions

Independent Contractor: A contractor whoundertakes to produce a given result, without

being in any way controlled as to the method

by which he attains the result

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Six exceptions to the rule where a personemploying independent contractor is not

liable for his wrongful acts:

i) Where the employer retains his control andmakes himself a party to the act

ii) Where the thing contracted is itself illegal

iii) Where under the contract the employer isincumbent to carryout a particular work

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iv) Where the thing contracted even thoughlawful, is likely to damage anothers property

E.g. Injury to neighbours house by pulling

down propertyv) Where the undertaking is of hazardous nature

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vi) Under workman compensation act, 1923 ifthe principal employs a contractor, such

contractors servants can recover

compensation from the principal, without

prejudice to the principals right to be

indemnified by the contractor

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LIMITATION ACT 1963Period of limitation: It is the period of

limitation prescribed for any suit, appeal orapplication in accordance with the provisionsof limitation Act. It is the duty of the court todecide when the limitation commences. If the

suit is barred by limitation the court has nojurisdiction.

Extension of prescribed period in certain

cases: Any appeal or application may beadmitted after the prescribed period if theapplicant satisfies the court that he has

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LIMITATION ACT 1963

Extension of prescribed period in certain cases:sufficient cause for not preferring the appealwithin limitation. Supreme court is empoweredto consider correctness of order of High Court.

Computation of period of limitation:

i) The day from which such period is to bereckoned shall be excluded

ii) Time requisite for obtaining a copy of decreeshall be excluded where a revision/reviewpetition was filed

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LIMITATION ACT 1963

Computation of period of limitation:

iii) In computing limitation for an application

for setting aside an award, the time requisite

for obtaining copy of award shall be excluded

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LIMITATION ACT 1963

Period of limitation:Sl.No Description Period Time from which period begins

1 To cancel or set aside an

instrument or decree or for

recession of contract

3 years Instrument or decree cancelled/set

aside/contract rescinded first known

to plaintiff

2 To redeem or recover

possession of immovableproperty mortgaged

3 years When right to redeem or to recover

possession accrues

3 For possession of property

or any interest therein

based on title

12 years When the possession of defendant

becomes adverse to the plaintiff

4 For possession of

property(Immovable)when

the plaintiff has become

entitled to possession by

reason of any breach of

condition

12 years When the forfeiture is incurred or the

condition is broken

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LIMITATION ACT 1963

Period of limitation:Sl.No Description Period Time from which period begins

5 For a suit for which no

period of limitation is

provided

3 years When the right to sue accrues

6 For filing in court an

arbitration award

30 days The date of service of notice of making

the award

7 For setting aside an award

or getting an award

remitted for reconsideration

30 days The date of service of the notice of the

filing of award

8 For review of judgment by a

court other than Supreme

Court

30 days The date of decree or order

9 To appeal in Supreme Court

for special leave to appeal

60 days The date of decree, order or sentence

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COMPANIES ACT 1956Company: Formed and registered under

companys Act or an existing company formedunder Indian companys act 1866

Public company: i) Is not a private company

ii) Minimum paid up capital of Rs.5.00 lakhsPrivate company: With a minimum paid up

capital of Rs.1.00 lakh

i) Restricts the right to transfer its shares if, anyii) Limits number of members to minimum of 2

and maximum of 50

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COMPANIES ACT 1956Private company: Restricts the right to

transfer its shares if, any

iii) Prohibits any invitation to the public to

subscribe for any shares or debentures

except as per SEBI guide linesiv) Prohibits any invitation or acceptance of

deposits

National Company Law tribunal: CentralGovt. shall appoint to exercise and discharge

such powers under the act

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COMPANIES ACT 1956Memorandum of Association: Any 7 or more

members and any 2 or more persons,associated for any lawful purpose, from anincorporated coy. With or without limitedliability

Limited company: Liability by thememorandum of association and themembers shall undertake to contribute to theassets in case coy. Is wound up.

An unlimited coy: Not having any limit on theliability of its members

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COMPANIES ACT 1956Salient Features of a Company:

Separate Legal Entity Limited Liability of Members

Perpetual Succession

Common seal Separate property ownership

Transferable shares

Capacity to sue and be sued

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COMPANIES ACT 1956Salient Features of a Company:

Directors:The directors are the brain of the company,

who generally control the functions of the

companyA private company must have a minimum of

two directors and public company must haveminimum three directors

The company may be managed by Directors,Managing director, Chairman and board ofdirectors, manager and secretary

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COMPANIES ACT 1956Managing director: Appointed by the board of

directors with substantial powersChairman: Head of the companys board ofdirectors and supervises and controls the workof all directors and the managing director

Board of directors: All the directors constitutethe board

Audit committee: All companies whose paid

up capital of 5 crores or more shall constitutean audit committee with a minimum of threedirectors

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Sale of Goods Act 1930

Goods: All movable property other than actionable

claims and money; and includes stocks and shares,growing crops, grass and things attached and forming

part of land, which are agreed to be severed from

the land before sale, or under the contract of sale

Contract for sale of goods: It is a contract wherebythe seller transfers or agrees to transfer the property

in goods to the buyer for a price. It includes both an

actual sale and an agreement to sell

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Essentials of a sale:

Two parties

Goods Movable property in the nature of

goods

Money consideration - Price

Transfer of ownership

Essentials of a valid contract (Offer,

acceptance, competent parties, free consentetc. as in a contract)

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Important provisions:

Doctrine of Caveat Emptor- Let the buyer bebeware. The buyer must use his skills and takecare to examine the goods thoroughly beforebuying and he cant blame the seller or any

other person after the goods are purchased.

FAS, FAR contracts: Free alongside ship, Freealongside rail. The property in the goods

passes to the buyer when the seller delivers tothe ship or Rail

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Important provisions:

FOB, FOR contracts: Free on board, Free on

rail. After the seller delivers the goods on

board the buyer is responsible for freight,

insurance and other expences.

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