According to Sir Henry Maine , the penal law of ancient communities is not
the law of crimes but the law of wrongs, which is commonly known in the modern
world as the Law of Tort. Wrongs may be civil or criminal in nature. While
criminal wrongs or crimes call for punitive or reformative remedies, civil
wrongs call for mostly restorative remedies.
Tort is a kind of civil wrong. Civil wrong is either a breach of a duty a
person owed to another or a violation of another's legal right, for which action
may be brought by means of civil proceedings. However,to be so actionable , the
must cause some injury or harm. Injury or harm is the violation of legal right
of a person causing any loss or detriment to a person.
Tort can thus be defined as an act or omission that gives rise to injury or harm
to another for which the courts impose liability on the tortfeasor (ie. The
perpetrator of such harm or injury) and provide civil remedy to the victim,
generally in the form of damages payable, though other civil remedies such as
injunction may be granted too.
The concepts of Civil Wrong, Injury or Harm and Civil remedy form the core
mechanism of Tort action, where the Injury or harm gives birth to the cause of
action in each case for which determination of liability is of utmost
Judicial widening of tort responsibility
Tort , being a civil wrong is mostly governed by uncodified yet distinct
principles that are borrowed from the Common Law Doctrines. That's contrary to
criminal wrongs which, being more pervasive in the society, has codified laws
which lay down specific punishments and criminal remedies. Being governed by a
body of doctrines, the extent and existence of tortious liability in most cases,
depend upon judicial deliberations and interpretations of the said doctrines and
occasionally, judicial addition to it. The kinds of tort liabilities incurred
are as follows:-
1. Absolute and Strict
The rule of absolute liability holds an entity absolutely liable for a tort
caused from his actions and the rule of strict liability holds an entity
strictly liable for tortious acts or omissions of his own.
Rylands v. Fletcher
In this case, Fletcher was running a coal mine under a lease. On the
neighbouring land, Rylands erected a reservoir for storing water .After the
construction of the reservoir was over; while it was partly filled with water,
the vertical shafts gave way and burst downwards and flooded the old passages
and ultimately the plaintiffs mine. The case was decided in 1868 and for the
first time laid down the rule of absolute liability.
In the instant case, the contractors chanced upon the old shafts but did not
inform the Defendant, which was actually negligence in their part. However, the
liability was affixed on the defendants by the court who laid down the
conditions for incurring absolute liability-
Person who, for his own purposes , brings on his lands and collects and keeps
there, anything that is likely to do mischief upon its escape , must keep it at
his own peril and if not, shall be prima facie answerable for all damage
resulting from its escape.
M.C Mehta v. Union of India  Clear distinction was laid down in this case between the rules of strict and
- Only those enterprises undertaking innately dangerous activity shall be
liable absolutely while others, strictly
- Escape as envisaged may not be from ones land, the rule shall apply when
people have been injured inside or even outside the premises
- The rule of absolute liability has no exception or defence that there
were no negligence on his part or that he took all reasonable care.
- Quantum of damages depend on the magnitude and economic capacity of the
Vicarious Tortious liability
Vicarious liability which means taking up of liability for acts of another,
follows from the maxim Qui facit per alium facit per se which means that he who
acts through another is deemed to do it himself. Tort committed by one might
give rise to liability of another where one is deemed to have “acted through
”. Such dissociation between tortfeasor and liability-holder would be
justified in certain cases of relationship between them -
A. Master-Servant Relationship or Employer-Employee Relationship
Kasturi Lal Ralia Ram Jain V. State Of Uttar Pradesh. 
In this case the tortious act was committed by the servant in discharge of
It was held that the State would be liable for the acts done by
servant. However, in order to exempt the State from liability it is necessary
that the statutory functions which are exercised by the Government servants were
exercised by way of delegation of the sovereign power of the State.
State of Rajasthan vs. Mst. Vidhyawati 
In the suit, by the widow of a pedestrian (deceased), against the State of
Rajasthan for damages arising from the death of his spouse due to rash driving
of a government vehicle on its way back from the repair-shop, the Supreme Court
held that for acts done in the course of employment but not in connection with
sovereign powers of the State, State like any other employer is vicariously
liable under the doctrine of respondent superior.
B. Principal-Agent Relationship
Lakshminarayan Ram Gopal and Son vs. The Government of Hyderabad 
The mills registered at Hyderabad appointed Lakshminarayan co. as their agent
for 30 years , during which the agent earned 2.5% commission on the business
done. The appellant refused to pay the taxes on the earnings of the agent of the
The Supreme Court held that the appellant was an agent and money earned was
taxable commission hence liability to pay the taxes was of the Mills for being
Liability arising from tort of negligence
Negligence can be defined as not following the duty of care that one is
supposed to, in his conduct, by way of an act or omission causing any harm or
injury to another. The liability befalls on the tortfeasor.
Donoghue v. Stevenson 
In this case, the appellant drank a bottle of ginger beer which she bought in a
café, which was in turn, bought from a retailer by the café-owner. It contained
the decomposed body remains of a snail. As the bottle was of dark opaque glass
sealed with a metal cap its contents could not be a ascertained by inspection.
The plaintiff brought an action against the manufacturer of the beer to recover
damages which she suffered due to serious effects on her health.
The House of Lords, allowed the bypass of the foundational issue that the
contractual relationship existed between the customer and the café-owner and
hence the manufacturer was outside the privity of contract and cannot be sued by
the customer. It was held that the manufacturer of the bottle was responsible
for his negligence towards the plaintiff.
Rural Transport Service v. Bezlum Bibi (1980)
Here, a passenger bus was overloaded and yet the conductor invited passengers on
the roof of the bus to travel. On its way, while overtaking a cart, the bus
swerved, a passenger on the roof was struck by an overhanging branch of a tree,
fell down and received multiple injuries and in the end succumbed to them.
act of conductor ( inviting the people of travel on the roof of the bus) and of
the driver(act of leaving the metallic track by swerving on the right, close to
the tree) was held to be rash and negligent. The consequences of such an act,
was therefore, foreseeable and they were found liable for negligence.
Tortious liability in cases of damnum sine injuria or injuria sine damnum
Liability in tort arises only where injuria has occurred ie. an injury to a
legal right of another, ie. injuria sine damnum gives rise to liability in tort
and civil action may lie, but damnum sine injuria , as in damages without injury
to legal right is not actionable.
Gloucester Grammar School case(1411) 
In the case of Gloucester Grammar School, the defendant was a school teacher in
the plaintiff's school. Due to some dispute, the defendant left the plaintiff's
school and set up a rival school next to that of the plaintiff. The plaintiff
sued the defendant for the monetary loss caused because of the competition.
It was held that the defendant was not liable for setting up school. There lies
no ground of action where the monetary loss caused , violates no legal right.
Hanker J. said 'Damnum may be absque injuria as if I have a mill and my neighbor
builds another mill whereby the profits of my mill is diminished… but if a
miller disturbs the water from going to my mill, or does any nuisance of the
like sort, I shall have such action as the law gives.'
Bhim Singh v. State of Jammu and Kashmir (1984) 
Mr. Bhim Singh, an MLA of Jammu and Kashmir was arrested and detained in police
custody; thereby, deliberately prevented from attending the sessions of the
The court directed the first respondent to pay exemplary damages of Rupees
Fifty thousand by way of consequential relief for the tort of false
This Indian case serves as an example of application of the principle injuria
His freedom of movement was restricted, his right to liberty was infringed
without due process of law; though he did not suffer particular physical or
monetary injuries, hence he was entitled to damages.
5. Tortious liabilty arising from assault, battery, mayhem
Battery , assault and mayhem can be described as ‘trespasses to the body' under
the Common Law. The Indian Penal Code,1860 provides the definitions for assault
and battery but uses a different term than ‘battery' as used in Common law.
Criminal force .-
Whoever intentionally uses force to any person, without
that person's consent, in order to the committing of any offence, or intending
by the use of such force to cause, or knowing it to be likely that by the use of
such force he will cause injury, fear or annoyance to the person to whom the
force is used, is said to use criminal force to that other.
Whoever makes any gesture, or any preparation intending or knowing
it to be likely that such gesture or preparation will cause any person present
to apprehend that he who makes that gesture or preparation is about to use
criminal force to that person, is said to commit an assault.
Mere words do not amount to an assault. But the words which a
person uses may give to his gestures or preparation such a meaning as may make
those amount to an assault.
Several jurisdictions do not consider the difference between mayhem and battery,
but rather count mayhem as a form of ‘aggravated battery' eg as in Japan.
The United States considers mayhem as a felony.
The scope of liability in these cases of tort can be understood through judicial
Vosburg v. Putney 
The defendant and plaintiff were school students , seated opposite each other.
The defendant kicked the plaintiff slightly below the knee, playfully. The
victim felt pain, few moments later. The plaintiff had actually undergone a
surgery in the same place only a few weeks earlier. The plaintiff became
severely ill subsequently and developed a weakness in his leg for the rest of
his life. The plaintiff was awarded damages and the perpetrator was found liable
of committing battery.
Hopper v. Reeve 
It was held that if a person is about to sit on a chair and the chair is pulled,
there is an assault as long as he takes to fall to the ground. The moment he
makes contact with the ground, it will become a battery.
Thus this case differentiated between battery and assault.
Garrett V. Taylor 
It was held that a quarryman had a cause of action against the defendant who had
caused the plaintiff's customers to discontinue buying the quarried stone by
threatening them with ‘mayhem'.
6. Liability from Constitutional Tort
The rationale for sovereign immunity that originated from the legal maxim Rex
non potest peccare (The king can do no wrong) was an ancient and
fundamental principle of the English law. It meant that if a tort was committed
by the king or the king's servant in the course of employment, the injured had
no right to sue the king under the vicarious liability. This immunity was only
available in relation to torts, but not for breach of contract and recovery of
property. The Crown Proceeding Act, 1947 abolished the maxim and made way for
liability of the king to be sued for tortious acts committed by him or under his
name under the principle of Respondent Superior.
After sovereignty of india was assumed by the Crown from the hands of East India
Company , the British Parliament enacted , Government of India Act, 1858 and
the Government of India Act, 1915 under which the Secretary of India in Council
was declared a body corporate for the purpose of suing and being sued. This was
a marked departure from doctrine of sovereign immunity to sovereign
This provision has been incorporated in Article 300 (i) of the Constitution of
The recognition of the liability of the state and dismantling the defence of
sovereign immunity has been the aims of constitutional tort which began with the
case of Nilabati Behera  wherein human rights, fundamental rights, human
dignity had been given primacy over the protection of tortious state acts under
the protection of sovereign immunity.
The Constitutional Tort is the kind of tort for which the state can be held
vicariously liable for violation of any constitutional right of any citizen or
Kamla Devi V. NCT of Delhi 
Delhi High Court held that when a person dies in police custody and the dead
body bears mark of violence or circumstances indicate so, then courts, acting
under Article 226 of the Constitution of India will be justified in granting
compensation to victim's family or dependents
State Of Andhra Pradesh V. Challa Ramkrishna Reddy 
The convict and his son died in custody from explosion of a bomb hurled into his
cell. Despite previous communications to the sub-inspector by them about the
death threats that they had received, no action was taken.The state tried to
resist liability on the grounds of limitation and sovereign immunity. The court
held that where a public officer commits a tort, (eg. tort of negligence as in
instant case) even when in pursuance of an Act of Legislature or under good
faith, the officer will be held liable and no protection would be given to the
State Of Gujrat V. Govindbhai Jhakhubhai 
A constable had assaulted a person during his course of duty resulting in loss
of limb of the victim. the State was held vicariously liable and doctrine of
sovereignty was rejected.
Bhim Singh V. State Of J&K 
Mr. Bhim Singh an MLA of Jammu and Kashmir was arrested and detained in police
custody and was deliberately prevented from attending the sessions of the
legislative assembly to be held on 11th September 1985, on the allegation that a
case under section 153A of Ranbir Penal Code was registered against him for
delivering an inflammatory speech at the public meeting held near parade ground,
Jammu on 8th September 1985.
He has not produced before the Magistrate till 13th
September. As his whereabouts were not known his wife filed a writ of Habeas
Corpus before the Supreme Court. On the inquiry of the SupremeCourt, it was
found that Mr. Bhim Singh was illegally imprisoned and detained by the police
personnel, with mischievous and malicious intent and it was certainly was a
gross violation of the constitutional right of the accused person under article
21 and 22(2). Thus, he was deprived of his fundamental right to personal liberty
and constitutional right to attend the Assembly session.
The court held that the police officers who are the custodians of law and order
should have the greatest respect for personal liberty of citizens and Custodians
of law and order should not become depredators of civil liberties. The court
directed the first respondent to pay exemplary damages of Rupees Fifty thousand
by way of consequential relief for the tort of illegal detention.
The expansion of the kinds of tortious liabilities, has been done by the
judiciary as can be perceived from the judicial precedents, which increases the
statistical chance of incurring of said liabilities by the tort-feasors. This in
turn, brings about the need for insurance to ensure redressals for the victim
and bearable burden for the tort-feasor .
Enactments such as the Public Liability Insurance Act, 1991, Environment
Protection Act, 1986, Consumer Protection Act, 2019, The Protection Of Human
Rights Act, 1993 And Pre-Natal Diagnostics Techniques Regulations And Prevention
Of Misuse Act, 1994 embody the new principles of tortious liability in india.
- Henry Maine, Ancient Law: Its Connection with the Early History of
Society, and its Relation to Modern Ideas ( Cambridge University Press,
- (1868) LR 3 HL 330
- 1987 SCR (1) 819: AIR 1987 965
- AIR 1965 SC 1039
- Decided on 2.2.1962
- Decided on 1 April 1954
- (1932) AC 598,
- (1410) Y.B 11 Hen.IV ,f.47, P.i 19
- AIR 1986 SC 494
- Section 350, INDIAN PENAL CODE.1860
- Section 351, IPC 1860.
- Jonathan H. X. Lee , Asian American History Day by Day: A Reference
Guide to Events pg.398 (ABC-CLIO Publications, Japan, 2018)
- 80 Wis. 523; 50 N.W 403
- (1817) Taunt. 698
- (1676) 81 ER 726
- Nilabati Behera v. State of Orissa (1993) 2 SCC 373
- 2000 Cri. LJ 4867 (2000): 84 DLT 91 at 105
- (2000) 5 SCC 712
- 2000 ACJ 1305
- AIR 1986 SC 494
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