Tort law in India

Tort law in India

National flag of Republic of India
Legal system
Common law
Sources of tort law
Common law
Statutes
Categories of tort law
Assault
Battery
False imprisonment
Negligence
Professional negligence
Contributory negligence
Defamation
Economic torts
Conspiracy
Fraud
Intentional interference
Restraint of trade
Land torts
Trespass
Nuisance
Rule in Rylands v Fletcher
Constitutional torts

Tort law in India is a relatively new common law development supplemented by codifying statutes including statutes governing damages. While India generally follows the UK approach, there are certain differences which may indicate judicial activism, hence creating controversy. Tort is breach of some duty independent of contract which has caused damage to the plaintiff giving rise to civil cause of action and for which remedy is available. If there is no remedy it cannot be called a tort because the essence of tort is to give remedy to the person who has suffered injury.

Sources of law

Tort law in India, like her common law counterparts, stems from both statute and common law.

Statutes

Similar to other common law countries,[1] aspects of tort law have been codified.[2] Furthermore, the Indian Penal Code criminalises certain areas of tort law.[3]

Common law

As tort law is a relatively young area of law in India, apart from referring to local judicial precedents, courts have readily referred to case law from other common law jurisdictions, such as UK,[4] Australia,[5] and Canada.[6]

Relevant local customs and practices

However, attention is given to local socio-cultural practices and conditions in applying foreign legal principles. The legislature have also created statutes to provide for certain social conditions; for example, due to the nature of Indian families, a statute was passed to simplify determination of damages in the event of family members.[7]

Categories of torts

Offences to the person

Assault

Indian courts have held that to constitute assault it is not necessary that there should be some actual hurt caused. A threat constitutes assault.[8]

The ingredients are set out below:[9]

Battery

The criteria for battery is equivalent to that of criminal force[10] defined in Section 350 of the Indian Penal Code.[11]

False imprisonment

False imprisonment "is the complete deprivation of his liberty for any time, however short, without lawful cause ... There need not be any actual imprisonment in the ordinary sense."[12]

The ingredients of this tort are listed below:[13]

Negligence

In regard to negligence, Indian jurisprudence have approved the approach stated in Ratanlal & Dhirajlal: The Law of Torts,[14][15] laying down three elements:

Professional negligence

The Indian approach to professional negligence requires that any skilled task requires a skilled professional.[16] Such a professional would be expected to be exercising his skill with reasonable competence.[17]

Professionals may be held liable for negligence on one of two findings:

The standard to be applied for judging negligence would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.[17] Professional opinion is generally accepted, but courts may rule otherwise if they feel that the opinion is "not reasonable or responsible".[18]

Contributory negligence

Indian Courts recognise the concept of contributory negligence. Contributory negligence means the failure by a person to use reasonable care for the safety of either of himself or his property, so that he becomes blameworthy in part as an "author of his own wrong".[19]

In the absence of reasonable care on the part of the claimant, courts are likely to reduce the liability of the injurer. "The rule of negligence with the defense of contributory negligence holds an injurer liable if and only if he was negligent and the victim was not. In India, this rule requires proportional sharing of liability when both parties were negligent. That is, the compensation that the victim receives gets reduced in proportion to his or her negligence."[20]

Defamation

The tort of defamation in India has largely followed the approach taken by the UK. Indian courts have endorsed the defences of absolute[21] and qualified privilege,[22] fair comment[23] and justification.[24] In UK, if the defendant is only successful in proving the truth of some of the several charges against him, the defence of justification might still be available if the charges not proved do not materially injure the reputation.[25] While there is no such provision in India, the law is possibly the same.[26] Recently, incidents of defamation in relation to public figures are highlighted.[27]

However, in India, the weight of the authorities is for discarding between libel and slander and making both of them actionable per se.[26] In UK, only libel and certain types of slander is actionable per se.[28] Criminal libel in UK was abolished in 2010,[29] while both slander and libel remain criminal offences in India,[30] making people liable not just to the extent of damages but also undergoing imprisonment.[31] An injunction may also be granted to stop further publication of defamatory material.[32]

Economic torts

Economic Torts seek to protect a person in relation to his trade, business or livelihood.[33]

While Indian courts has been reluctant to award damages for the economic torts of simple and unlawful conspiracy as well as inducing breach of contract due to the confused state of the law,[34] the court has allowed damages for torts affecting economic interests under the conspiracy to injure, and in doing so, referred to UK authorities on the matter.[35]

The courts have however been more willing to adopt the law in UK in areas such as the tort of deceit,[36] unlawful interference with trade,[37] intimidation,[38] and malicious falsehood.[39]

Land torts

Land torts seek to prevent interference with land in the possession of another.[40] Interference may take the form of entering land or part of it, or of remaining there after the withdrawal of permission, or of dispossessing the occupant.[33]

Trespass to land

Trespass to land is any direct interference with land in the possession of another and is actionable per se.[33] Examples of trespass are unauthorised entry to land, placing things on land and inducing animals to enter.[41] Also, continuing trespass, which is actionable from day to day,[42] occurs when there is continuation of presence after permission is withdrawn.[43] The position taken with regards to the elements of trespass is similar in the UK and India.[44]

Nuisance

Nuisance is a form of lesser interference with land.[33] It may be private or public, and private nuisance has come to cover the conduct of the defendants which affects the claimant's interest in the land.[45] This could be done by:

While private nuisance is always actionable, public nuisance is not. A claimant of public nuisance has to establish special loss over and above the inconvenience suffered by the public in general,[46] as public nuisance is a crime and it would be unreasonable for everyone inconvenienced by it to be allowed to claim.[47] This distinction was followed in India,[48] along with the UK principles of nuisance.[49]

Rule in Rylands v Fletcher

Anyone who in the course of "non-natural" use of his land "accumulates" thereon for his own purposes anything likely to do mischief if it escapes is answerable for all direct damage thereby caused.[50] It imposes strict liability on certain areas of nuisance law.[33]

While in the UK, this rule is strictly "a remedy for damage to land or interests in land" and "damages for personal injuries are not recoverable under the rule",[51] in India, the courts have developed this rule into a separate area of absolute liability rule, where an enterprise is absolutely liable, without exceptions, to compensate everyone affected by any accident resulting from the operation of hazardous activity.[52] This differs greatly from the UK approach as it includes all kinds of resulting liability other than damage to land.[52]

Constitutional torts

Another area of tort that developed in India which differs from the UK is the availability of constitutional torts. Creating constitutional torts is a public law remedy for violations of rights, generally by agents of the state, and is implicitly premised on the strict liability principle.[53] The tort was further entrenched when the court allowed compensation to be awarded as "a remedy available in public law; based on strict liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort".[54] This approach is vastly different from the approach taken in UK as compensation for damages is not an available public law remedy.[55]

Damages

Calculation of damages

Heads of claims under personal injury

Damages in the law of torts in India are premised on the concept of restitutio ad integrum.[56] India adopts a compensatory method and advocates "full and fair compensation" in all cases.[57]

In determining the quantum of damages, the Indian court will look to similar cases that may enable comparison.[58]

India’s formulation of damages for tort cases is premised on the multiplier method, awarding compensation based on the degree of compromise to the earning ability of the victim.[59] Under the multiplier method, the fair and just amount represents

the number of years' purchase on which the loss of dependency is capitalised. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future. The allowance for immediate lump sum payment the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last.[60]

The multiplier principle is encapsulated in a statutory form for tortious cases involving personal injuries caused by motor vehicles, under the Motor Vehicle Act.[61] However, in so calculating, the court will take into account inflation in calculating damages.[62]

For instances of pecuniary damages with regards to personal injury, the following heads will be taken into account:[63]

In instances of non-pecuniary loss, the following will be taken into consideration:[64]

Aggravated damages may be awarded to compensate victims for their wounded feelings in tortious cases in certain cases.[65] These damages are determined by examining if the defendant's conduct aggravated the plaintiff's damage by injuring "feelings of dignity, safety and pride".[66]

Approach towards pain and suffering

In analysing pain and suffering, several factors such as severity of injury, medical treatment required, psychological stress[67] and long-term physical and emotional scars, would be taken into account.[68]

In cases of victims who were unconscious, one must award not only for the "loss of amenities and loss of expectation of life, but also for pain and suffering".[69] Such damages are awarded not as a matter of "solace".[70] This view comes close to that expressed by Lord Scarman in Lim Poh Choo v Camden and Islington Area Health Authority,[71] difference being that an award must be "made even for pain and suffering in case of unconscious plaintiffs".[70] The reason for so doing is that it "looks strange that wrongdoer whose negligence makes the victim unconscious is placed in a more advantageous position than one who inflicts a lesser injury which does not render the victim unconscious".[72]

There are three guiding principles in measuring the quantum of compensation for pain and suffering:[73]

Punitive damages

Being influenced by Rookes v Barnard,[74] the India Court ruled that punitive damages can be awarded in only three categories:[75]

However, this stand has since shifted with an expanding tort jurisdiction. The Supreme Court accepted a committee's suggestion to evolve a "principle of liability – punitive in nature – on account of vandalism and rioting".[76] The reasoning given was that it "would deter people from similar behaviour in the future".[76]

In an environmental tort case, the defendant was made to pay exemplary damages "so that it may act as deterrent for others not to cause pollution in any manner".[77]

Tortious litigation

Despite being often cited as a litigious country,[78] the rate of litigation is low, due to problems such as long delays, heavy expenses and meagre damage awards.[79] There has apparently been an increase in litigation over the past years, especially with cases involving the government.[80] This has been said to be due to India’s socio-economic growth and the resultant sensitisation regarding legal rights.[80]

Difficulties in the legal system

The delay in delivery of justice is a major problem plaguing India.[81] This has been attributed to reasons such a low judge to population ratio (1 judge per 100,000 capita, with a small number of courts available),[82] as well as poor administrative governance.[83]

Outmoded procedural laws allow for delaying tactics, such as interlocutory appeals and stay orders.[83] The government has also been accused of employing delay tactics whenever it is a litigant, appealing even when the chance of success is remote.[84] As a result, the system appears to resemble a "sunk cost auction", where litigants invest ever-increasing amounts to stave off higher losses.[79]

Reforms

Due to the problems noted above, it has been stated that reformation lay with the parliamentarians and legislators. Structural reforms are to be brought about by amendments to legislation, while operational reforms can only be brought about by "a change in mindset".[85]

Controversies

Article 21 is at contention here with regards to constitutional torts.

Absolute liability

One of the controversies in Indian tort law concerns the rule on absolute liability. The extremely strict approach, where even acts of God are not recognised as a defence is severely criticised especially since it disregarded the "generally accepted parameter of minimum competence and reasonable care".[86] The implementation of such a rule endangers the growth of science and technical industries, as investors have to take the risk of liability given that there is no defence to the rule.[86]

Judicial activism

The judiciary has been criticised for being overly activist and overstepping its jurisdiction. By creating constitutional torts, they are accused of usurping both legislative and administrative functions.[87] Controversy further arose when judges began to read such obligations of the state into Article 21 of the Indian Constitution[88] to impose vicarious liability on the state.[89] However, such judicial activism in India has been used for "achieving social and distributive justice."[90]

Notes

  1. ↑ See Defamation Act 1952 of UK and Civil Liability Act 2002 (NSW) of Australia
  2. ↑ See Motor Vehicle Act 1988
  3. ↑ Defamation and certain areas of negligence are criminalised in the Indian Penal Code, Act No. 45 of 1860
  4. ↑ See J. Kuppanna Chetty, Ambati Ramayya Chetty and Co. v Collector of Anantapur and Ors 1965 (2) ALT 261 at [39].
  5. ↑ See Rattan Lal Mehta v Rajinder Kapoor [1996] ACJ 372 at [10].
  6. ↑ See Rattan v Rajinder (1996) ACJ 372 at [8], [11], and [13].
  7. ↑ Motor Vehicles Act 1988, Act No. 59 of 1988, Second Schedule, inserted by Motor Vehicles (Amendment) Act, 1994 of UK.
  8. ↑ Rupabati v. Shyama [1958] Cut 170.
  9. ↑ The Indian Penal Code Act No. 45 of 1860 s 350.
  10. ↑ The Law of Tort, P. S. Atchuthen Pillai (Eastern Book Co, 8 Ed, 1987).
  11. ↑ S350 of the Indian Penal Code: "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 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".
  12. ↑ The Law of Tort, P. S. Atchuthen Pillai (Eastern Book Co, 8 Ed, 1987) at p 34.
  13. ↑ 'The Law of Tort, P. S. Atchuthen Pillai (Eastern Book Co, 8 Ed, 1987) at pp 34-35.
  14. ↑ Ratanlal & Dhirajlal, Singh J, G.P., ed., The Law of Torts (24th. ed.), Butterworths
  15. ↑ In the case of Ms Grewal & Anor v Deep Chand Soon & Ors [2001] L.R.I. 1289 at [14], the court held that "negligence in common parlance mean and imply failure to exercise due care, expected of a reasonable prudent person. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. ... negligence represents a state of the mind which however is much serious in nature than mere inadvertence. ... whereas inadvertence is a milder form of negligence, negligence by itself means and imply a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow."
  16. ↑ Jacob Mathew v State of Punjab [2005] S.C. 0547, per R.C. Lahoti.
  17. 1 2 Jacob Mathew v State of Punjab at [8]
  18. ↑ Vinitha Ashok v Lakshmi Hospital & Ors [2001] 4 L.R.I.292 at [39].
  19. ↑ Pramodkumar Rasikbhai Jhaveri v Karmasey Tak and Ors. [2002] S.C. 5436, as per Balakrishnan J.
  20. ↑ Relationship between Liability Regimes and Economic Development: A Study of Motor Vehible Accidents in India, Ram Singh, CSLG Working Paper Series, CSLG/WP/09/03
  21. ↑ Pukhraj v State of Rajasthan [1973] SCC (Cri) 944.
  22. ↑ Rustom K. Karanjia and Anr v Krishnaraj M.D. Thackersey and Ors. (1970) 72 BOMLR 94.
  23. ↑ ‘’Ram Jethmalani Vs. Subramaniam Swamy'’ 2006 (87) DRJ 603.
  24. ↑ Santosh Tewari and Ors V State of U.P. and Anr 1996 (20) ACR 808.
  25. ↑ Defamation Act, 1952 (England).
  26. 1 2 Ayesha (6 October 2010), The Tort of Defamation: An Analysis of the Law in India and the United Kingdom.
  27. ↑ Pattnaik, Aju John 'Defamation Law in India'2 March 2013
  28. ↑ English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd [1940] 1 All ER 1.
  29. ↑ "Coroners and Justice Act 2009". Opsi.gov.uk. 17 August 2010. Retrieved 7 September 2010.
  30. ↑ Indian Penal Code Chapter XXI, 1860
  31. ↑ Vibhor Verdhan (4 September 2001), Online Defamation & Various Legal Issues
  32. ↑ See Prameela Ravindran v. P. Lakshmikutty Amma A.I.R. 2001 Mad 225 and ‘Douglas V Hello! Ltd’ (2005) 3 WLR 881.
  33. 1 2 3 4 5 6 Simon Deakin, Angus Johnston and Basil Markesinis (2007), Markesinis and Deakin’s tort law 6th ed, Clarendon press, Oxford
  34. ↑ Rohtas Industries Ltd. and Anr. V Rohtas Industries Staff Union and Ors [1976] 3 SCR 12.
  35. ↑ Rajlal Sindhi V Kaka & Company, Satna and Anr ILR [1984] MP 645.
  36. ↑ Ellerman & Bucknall Steamship Co. Ltd v Sha Misrimal Bherajee [1966] SuppSCR 92.
  37. ↑ Gujarat Bottling Co. Ltd. and others vs Coca Cola Company and others 1995 (2) ARBLR 249 (SC).
  38. ↑ Bavisetti Venkata Surya Rao V Respondent: Nandipati Muthayya AIR1964AP382
  39. ↑ Dabur India Ltd. V Colortek Meghalaya Pvt. Ltd. 2010 (42) PTC 88 (Del).
  40. ↑ Entick v Carrington(1765) 95 ER 807.
  41. ↑ Tutton v A. D. Walter Ltd [1986] QB 61.
  42. ↑ Holmes v Wilson (1839) 10 A&E 503.
  43. ↑ Lonskier v B. Goodman Ltd [1928] 1 KB 421.
  44. ↑ Kewal Chand Mimani(d) by Lrs. v S.K. Sen and Ors (2001) 3 SCR 1056.
  45. ↑ Goldman v Hargrave [1967] 1 AC 645.
  46. ↑ Ricket v Metropolitan Ry. Co (1867) LR 2 HL 175.
  47. ↑ R v Rimmington and Goldstein [2006] 1 AC 459.
  48. ↑ Datta Mal Chiranji Lal V L. Ladli Prasad and Anr 1960 AII 632.
  49. ↑ Roshan Lal and Anr.v Banwari Lal and Anr 1986 (2) WLN 733.
  50. ↑ Rylands v Fletcher (1868) LR 3 HL 330.
  51. ↑ Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61.
  52. 1 2 MC Mehta v Union of India AIR 1987 SC 1086 (Oleum Gas Leak Case).
  53. ↑ The landmark case on this was Rudul Sah v State of Bihar (1983) 4 SCC 141 – a case on illegal detention.
  54. ↑ Nilabati Behara v State of Orissa (1993) 2 SCC 746.
  55. ↑ Rookes v Barnard [1964] UKHL 1.
  56. ↑ Destruction of Public and Private Properties v State of A.P. and Ors (2009) 5 SCC 212.
  57. ↑ Rattan v Rajinder(1996) ACJ 372 at [19].
  58. ↑ The court acknowledged that "no two cases are alike, but still, it is possible to make a broad classification which enables one to bring comparable awards together" P Satyanarayana v I Babu Rajendra Prasad & Anor 1998 ACJ 88 at [26].
  59. ↑ Bijoy Kumar Dugar v. Bidya Dhar Dutta (2006) 3 SCC 242; Spring Meadows Hospital v. Harjot Ahluwalia (1998) 4 SCC 39 and Klaus Mittelbachert v. East India Hotels AIR 1997 Del 201.
  60. ↑ general manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors at [17].
  61. ↑ Motor Vehicle Act c163A (India) Second Schedule.
  62. ↑ Nagappa v Gurudayal Singh & Ors [2003] 1 LRI 76 at [26].
  63. ↑ Lata Wadhwa & Ors v State of Bihar & Ors [2001] 3 LRI 1112.
  64. ↑ Lata Wadhwa & Ors.
  65. ↑ These cases are cases where the damages are at large and not limited to pecuniary loss
  66. ↑ Destruction of Public and Private Properties v State of A.P. and Ors. AIR 2009 SC 2266 at [5].
  67. ↑ Lata Wadhwa & Ors at [5]
  68. ↑ Nagappa v Gurudayal Singh & Ors [2003] 1 LRI 76 at [25]
  69. ↑ Rattan v Rajinder (1996) ACJ 372 at [19].
  70. 1 2 Rattan v Rajinder at [19].
  71. ↑ Lim Poh Choo v Camden and Islington Area Health Authority [1979] UKHL 1.
  72. ↑ P Satyanarayana v I Babu Rajendra Prasad & Anor (1988) ACJ 88.
  73. ↑ Klaus Mittelbachert v East India Hotels Ltd at [64].
  74. ↑ Rookes v Barnard [1964] UKHL 1, [1964] AC 1129 (21 January 1964).
  75. ↑ Rustom K. Karanjia and Anr. v Krishnaraj M.D. Thackersey and Ors (1970) 72 BOMLR 94.
  76. 1 2 Destruction of Public and Private Properties at [4].
  77. ↑ M. C. Mehta v. Kamal Nath (1997) 1 SCC 388 at [24].
  78. ↑ Marc Galanter, "Part I Courts, Institutions, and Access to Justice: “To the Listed Field …”: The Myth of Litigious India” (2009) 1 Jindal Global Law Rev. 65 at 70
  79. 1 2 Galanter, at 74.
  80. 1 2 Bharat Chugh, Litigation & Delays in India, Legal Service India, retrieved 12 October 2011
  81. ↑ Pendency of cases are "gigantic problems": SC Judge, Daily News & Analysis, retrieved 12 October 2011
  82. ↑ Pendency of cases are "gigantic problems": SC Judge. see table 1.
  83. 1 2 Galanter, at 71.
  84. ↑ Galanter, at 73-74.
  85. ↑ Pendency of cases are "gigantic problems": SC Judge.
  86. 1 2 Indranil Ghosh, The Concept of Strict and Absolute Liability: A Critique, Lawyers Club India, retrieved 12 October 2011
  87. ↑ Jamie Cassels, "Judicial Activism and Public Interest Litigation in India: Attempting the Impossible" (1989) 37 Am. J. Comp. L. 495 at 509.
  88. ↑ Noor Mahmmad Usmanbhai Mansuri v State of Gujarat (1997) 1 GujLH 49 at [57].
  89. ↑ Such situations include custodial violence (Lawyers' Forum for Human Rights v State of West Bengal (1997) 1 CalHCN – a case where a man died in police custody; held that "it is the paramount duty of police officials to protect his body" at 491), medical negligence (Rasikbhai Ramsing Rana v State of Gujarat (1998) 9 SCC 604 – here the prison officials neglected in providing medical treatment to a prisoner assaulted by other inmates, resulting in the victim’s death), encounter deaths (extra-judicial killings in staged encounters; see People’s Union for Civil Liberties v Union of India (1997) 3 SCC 433), illegal detention, disappearances (see Sebastian Hongray v Union of India (1984) 1 SCC 339), and culpable inaction.
  90. ↑ P N Bhagwati, "The Role of the Judiciary in the Democratic and Judicial Restraint" (1992) 18 CommwLBull 1262 at 1266.

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