The law of Tort in India is developed and evolved from the law of Torts in UK.
Most popularly known as “judge made law” this law does not come from a statute
and is not codified. Irrespective of this, it has been in existence over a
number of years, however the instances for cases under tort have been reducing.
Compared to the number of cases under Tort law filed in the UK and USA, the Tort
litigation in India is low. Although a helpful form of law, many reasons can be
attributed to the lower amount of Tort cases, mainly because it is believed that
cases under Torts are not pursued as vigorously as they are in UK and USA.
This article provides and overview of the law of Tort in India, its practice and
principles, and also puts light on what information should an individual possess
in order to understand his rights under tort.
In simple terms, tort can be defined as an act conducted by one person towards
another person which causes harm to the other person. This act of wrongdoing
causes either injury to the other person or harm. By injury we mean - invasion
of a legal right of a person and by harm it is meant - causation of any loss or
detriment to person which leads to his suffering. The intensity of Tort is
further determined by whether the act was intentionally caused in order to
inflict act on the other person or weather the person acted in a negligent
manner which eventually caused harm to the other person.
The Indian law of Tort is shaped after the principles of Tort law developed in
UK. In fact, most of the landmark judgments used in an action of Tort in India
are from the House of Lords / Courts in England. The cases of Tort in India are
tried in Civil courts and the relief includes damages by way of monetary
compensation or an order for injunction or restitution.
Types of Torts
Torts can be broadly divided into three category on the wrong-doing caused,
these are as under -
1. Intentional Torts -
A tort caused by an intentional wrongful act by the other
person/ group of persons (i.e the defendant) is called as an Intentional Tort.
These include acts such as Assault, Battery, Trespass, false imprisonment,
slander and libel.
2. Negligent Torts -
a wrongful act caused by the negligence of another person/
group of persons is called Negligent Torts. These include incidents which
usually occur because a person has failed to behave with the level of care that
a person with an ordinary prudence would have done. It is essential to show here
that the there was no additional duty of care required, a person failed to was
negligent in exercising the reasonable level of care that one with an ordinary
prudence would have. Such torts include negligent harm to the body or the
property of a person. For eg - if a person has negligently disobeyed the traffic
rules and caused an accident, he is liable under negligent torts.
3. Torts under Strict Liability -
In the torts committed under this category a
person is considered to be liable irrespective of his intention to commit the
wrong-doing. These Torts are of such a strict nature, that the courts deem it
fit to rule out the need for proving intention here. Usually such torts include
acts of production of defective goods and medicines which cause a serious injury
to the life of the consumer. In such cases, it is not only the manufacturer who
is held liable but all those involved in the supply chain of the faulty product
as considered to be liable until it is established who was indeed at fault.
Torts and India
It has often been discussed whether the law of torts in India is necessary or
not. The courts in India have often taken the stand that Tort law is essential
in India and is conducive for the growth and development of the society. The
courts and the government have recognized the importance of torts in their
rulings by rewarding exemplary damages in case of negligence, providing
compensation to the victims of rape, recognizing governmental torts i.e. torts
by government employees. However, the knowledge of Torts and its use is not very
popular among the general public, primarily because it is not codified. It is
hence essential to highlight the basic principles and concepts of Torts where a
person can understand his rights and liabilities under the Tort laws.
Principles of Tort
These principles can be discussed at length but I will be mentioning them here
in brief just to provide an additional understanding of the tort law -
1. Compensation -
an action under Tort is tried in civil courts where the relief
sought is usually compensation i.e. damages or injunction. Although some Torts
are of such a nature that they can be tried in criminal courts, the objective
here is to rectify the wrong-doing and put the victim in a position he would
have been in had the wrong not been committed. Hence, in Torts, the amount of
damages is calculated and awarded to the victim if it is proved that the
wrongdoing was indeed committed.
2. Concept of Injury -
Injuries and damages do not always go hand in hand, this
concept is further explained in Latin as damnum sine injuria and injuria sine
damnum. The first principle - damnum sine injuria means a person suffers damage
but there is no injury to his legal rights. In such cases no action under tort
can be initiated. This can be further clarified with the example - if a person
starts a business next to your business and you lose half of your clients to
him, you do suffer injury but none of your legal right is affected and hence you
cannot bring legal action upon this person.
By injuria sine damnum
we mean that an injury is caused to the legal right to
the person without causing any actual damage to him. Such an act, even without
any damage caused, can be entitled for a suit under tort merely because the
right of a person is violated. For example, the landmark case of Ashby vs. White
- the polling officer prevented a citizen from voting causing him to lose his
right of voting. However the candidate the citizen was going to vote for
eventually got elected, hence there was no actual damage caused to the
candidate. However, since it was a breach of the right of the citizen to vote,
it was held that the polling officer was liable under tort for damnum sine
3. Burden of Proof -
The plaintiff under Tort must prove the following to
establish the commission of tort -
Existence of duty of the defendant towards the plaintiff - this is usually the
reasonable duty to care
Breach of this duty
Injury caused to the plaintiff because of breach of this duty and;
Damages suffered by the plaintiff due to such a breach
However, the circumstances are such that it is not always possible to prove all
the above elements. In such situations, it is possible to prove that the
defendant controlled the situation or the instrument that caused the injury and
that the injury was of such a nature that it does not usually arise without
negligence. Existence of such a situation causes reduction in the plaintiff’s
burden of proof and such a situation is caused res-ipsa-loquitur i.e. the thing
speaks for itself. For example - if a pedestrian is injured by a huge pot placed
by the owner of an apartment on the window, it can be said that res ipsa
exists as the owner of the apartment was responsible for acting with
ordinary prudence which he failed to by placing the pot on the open window.
3. Vicarious Liability -
This means that if the defendant has committed tort
while acting under direct orders and supervision of his seniors, his seniors are
vicariously liable to his act and are hence held liable. A popular example here
is of accidents caused by food delivery persons rushing to deliver food. In such
circumstances, their company is also held equally liable for the wrongdoing.
4. Contributory Negligence-
If the plaintiff has contributed to a part of the
wrongdoing, then it is said that the plaintiff has contributed to the negligence
and is not liable to be compensated. For example if a person touches a coffee
machine in spite of express warnings on the machine that it is hot, and
eventually burns himself, he cannot sue the restaurant for his burns. The
concept of volenti non fit injuria is also included in this. It means that if a
person voluntarily places himself in such a position knowing that it will injure
him and cause damages, he is not later liable to claim for damages in case he is
injured. In such cases, it is considered that the person has voluntarily
accepted the risk and cannot hold anyone else liable at a later stage.
5. Joint & Several Liability in Tort -
It is a well established principle in
Tort law that when the injury is caused due to the wrongdoing of two or more
people, then, all such people are liable to pay the compensation / damages under
tort. The Plaintiff can also decide to seek damages from just one defendant.
This principle was also asserted in the case of UP State Road Transport versus Smt. Rajani and Ors 2007 (2) AWC 1867.
6. Self Defense -
The defendant in a suit for Tort can claim the defense that he
acted merely in order to defend himself or his property from the danger. This
principal is usually accepted by the courts, unless in exceptional cases like
that before the Supreme Court of Iowa, Katko versus Briney 183 N.W.2d 657 (Iowa
1971). Here, Mr. Briney had set up an an automatic gun trap in his empty house
to attack robbers in case of a break-in. Mr. Katko broke into the empty house
and was shot. He later sued for assault. Mr. Briney stated that he acted in self
defence to protect his house. However, the Supreme Court of Iowa held that use
of gun for defense of an unoccupied house is unjustified as human life and limb
are more important.
Development of Torts in India
The Supreme Court of India has through its numerous landmark judgements helped
shaped the law of Torts in India. It has also been observed a number of times,
that there is a need to codify the law of Tort in order to facilitate its
greater use. The principles of Torts have also been applied in newer
legislations such as the Environment Protection Act, 1986, The Consumer
Protection Act 1986, The Human Rights Protection Act 1988, The Motor Vehicles
Act, 1988. However, it is still observed that the branch of Torts as a whole is
still growing and developing in India as compared to the development of Torts in
countries like UK and USA.
However, this should not be interpreted as if the courts are not recognizing or
entertaining genuine claims under tort. Hence, it can be said that a stronger
base for a codified or a more developed Tort law can be established in India by
rigorously arguing the cases under Tort, making people aware of this branch of
law where relief can be sought and gradually developing this area of Law.