LAW OF TORT PROJECT

PROJECT TOPIC:The Fixation of Liability for Defective Product

Instructor: Prof.Yogesh Pratap Singh

SUBMITTED BY:

S VIVEK -13/BBALLB/035
SARTHAK PATTNAIK -13/BBALLB/039

Table of Contents
Title

Page no.

Research Methodology

Table of Cases

Abbreviations

Introduction

History and evolution

Chapter -1

Chapter -2

11

Chapter -3

14

Chapter-4

17

Conclusion

26

References

27

Research Methodology
The research for the project is doctrinal in nature i.e. research is concerned with legal prepositions
and doctrines. During the research,we did not focus on the onfield sources rather we have focused
on cases,statues and acts. The research is purely analytical and descriptive keeping in view the
different aspects of the topic. The research work in this project is an international perspective of
product liability laws and the cases which are related to it and have analysed the Indian product
liability laws. The countries mainly referred to are United Kingdom,United States and India.The
main issue in the research was the fixation of liability in these countries.

Abbreviations
AIHC

All India High Court Cases

AIR

All India Report

AER

All England Report

Art.
Cr.P.C
Cri. L. J.

Article
Criminal Procedure Code
Criminal Law Journal

Ed.

Edition

I.e.

Interlingua

S.C.R.
SC
SCC
v.
Viz
Q.B
All E.R

Supreme Court Report

Supreme Court
Supreme Court Cases
versus
videlicet
Queens bench
All England Report

A.C

Appeal Court

K.B

Kings bench

CPJ

Consumer protection Journal

Table of Cases
Donoghue v Stevenson [1932] UKHL 100
Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980)
Liebeck v. McDonalds Restaurants (Bernalillo County, N.M. Dist. Ct. 1994)
Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948)
Devlin v. Smith, 89 N. Y. 470 (1882)
Grant v The Australian Knitting Mills ([1936] A.C. 562)
Loop v. Litchfield 42 N. Y. 351 (1870)
Devlin v. Smith, 89 N. Y. 470 (1882)
MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916)
Mexicali Rose v. Superior Court, 1 Cal. 4th 67 (1992)
Abouzaid v. Mothercare (UK) Ltd. [2000] EWCA Civ 348
Vigneault v. Dr. Hewson Dental Co., 15 N.E.2d 185 (Mass. 1938)
Smt. Uma Deepak vs Maruti Udyog Limited And Ors. I (2003) CPJ 90 MRTP
Syngenta India Limited v P. Chowdaiah S/o P. Naganna and others,(2013)Indlaw NCDRC 309
Wipro Limited, (Formerly known as Wipro Infotech Limited), Bangalore v Toppers Multimedia (P)
Limited and others ,2010 Indlaw NCDRC 13; 2010 (4) AWC 4.104; 2010 (2) CPJ(NC) 39 .
Coca-Cola India (P) Limited v Dr. Amarjit Singh and another,2010 Indlaw NCDRC 288 .
Sahib Exports India, through Partner Manjit Singh, New Delhi v New India Assurance Company
Limited, Through Divisional Manager, New Delhi, 2011 Indlaw NCDRC 1; (2011) (87) ALR 102;
2011 (3) CPJ(NC) 297.
Punjab Tractors Limited v P. Sanghasena and another,2011 Indlaw NCDRC 83; (2011) (1) CPJ(NC)
293.
Great Eastern Appliances Private Limited v Santosh Kumar Kanodia @ S.K. Kanodia and another,
(2011) Indlaw CAL 425 .

Introduction
The liability of manufacturers of products for harms caused to consumers product liability 1
Product liability is a branch of strict liability the fixation of liability for a defective product is a
trending

topic

in

today's

world

as

it

affects

everybody

in

the

economic

cycle

Consumers,Manufacturers(Corporations) and the Government,as it has duty to make effective laws

to prevent such events from happening in the future.The fact is that countries such as the United
States of America,the United Kingdom and the countries of the european union have very stringent
laws dealing with such cases,even some cases awarding exemplrary damages.These countries have
a very efficient and effective consumer protection system and due care is taken by manufacturers
whenever they manufacture and introduce new products into the market.

Caveat Venditor
When a sale is subject to this warning the purchaser assumes the risk that the product might be
either defective or unsuitable to his or her needs.This rule is not designed to shield sellers who
engage in Fraud or bad faith dealing by making false or misleading representations about the quality
or condition of a particular product. It merely summarizes the concept that a purchaser must
examine, judge, and test a product considered for purchase himself or herself.2
The modern trend in laws protecting consumers, however, has minimized the importance of this
rule. Although the buyer is still required to make a reasonable inspection of goods upon purchase,
increased responsibilities have been placed upon the seller, and the doctrine of caveat venditor
1 RESTATEMENT (THIRD)OF TORTS: PRODUCT LIABILITY 1 (1998) (One engaged in the business of
selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm
to persons or property caused by the defect.); id. 1 cmt. c (The rule stated in this Section applies . . . to
manufacturers and other commercial sellers and distributors . . . .); see alsoRESTATEMENT (SECOND)OF
TORTS 402A (1965); DAN B. DOBBS, THE LAW OF TORTS 352 (2000); DAVID G. OWEN, PRODUCTS
LIABILITY LAW 1.1 (2005).
2 "Caveat Venditor",The Free Dictionary,2013,http://legal-dictionary.thefreedictionary.com/ ,(2 October 2013)

(Latin for "let the seller beware") has become more prevalent. Generally, there is a legal
presumption that a seller makes certain warranties unless the buyer and the seller agree otherwise 3
One such Warranty is the Implied Warranty of merchantability. If a person buys soap, for example,
there is an implied warranty that it will clean; if a person buys skis, there is an implied warranty that
they will be safe to use on the slopes.4
9

A seller who is in the business of regularly selling a particular type of goods has still greater
responsibilities in dealing with an average customer. A person purchasing antiques from an antique
dealer, or jewelry from a jeweler, is justified in his or her reliance on the expertise of the seller.
If both the buyer and the seller are negotiating from equal bargaining positions, however, the
doctrine of caveat emptor would apply.5
For product liability to arise, at some point the product must have been sold in the marketplace.
Historically, a contractual relationship, known as "privity of contract," had to exist between the
person injured by a product and the supplier of the product in order for the injured person to
recover. In most states today, however, that requirement no longer exists, and the injured person
does not have to be the purchaser of the product in order to recover. Any person who foreseeably
could have been injured by a defective product can recover for his or her injuries, as long as the
product was sold to someone.6
Liability for a product defect could rest with any party in the product's chain of distribution, such as
the manufacturer, wholesalers, a retail seller of the product, and a party who assembles or installs
the product. For strict liability to apply, the sale of a product must be made in the regular course of
the supplier's business. Thus, someone who sells a product at a garage sale would probably not be
liable in a product liability action.7

3 Id. [2].
4 "Caveat Venditor",supra note 2.
5 "Caveat Venditor",supra note 2.
6 "What is product Liability",available at http://injury.findlaw.com/product-liability/what-is-product-liability.html
7 Id. [6]

10

History and evolution of product liability law and its cases

The evolution of product liability cases has been a long process.The cases relating to product
liability are mostly related to the UK,as it has set a foundation for these cases.
One of the most important case was the case of Donogue vs Stevenson

Donoghue v Stevenson8
Mrs Donoghue went to a cafe with a friend. The friend brought her a bottle of ginger beer and an
ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs
Donoghue poured half the contents of the bottle over her ice cream and also drank some from the
bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over
the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal
injury as a result. She commenced a claim against the manufacturer of the ginger beer.
9

This case lead to the establishment the modern law of negligence and the neighbour test.10

8 Donoghue v Stevenson [1932] UKHL 100

9 Donoghue v Stevenson [1932] AC 562,
avaible at http://www.e-lawresources.co.uk/Donoghue-v-Stevenson.php
10 Id. [9]

11

Chapter 1
What are the Types of Defective product liability claims ?
There are three categories of defective product liability claims :

Defectively Manufactured Products

The most obvious type of product liability claim is when the injury-causing product was
defectively manufactured. A defectively manufactured product is flawed because of some error in
making it, such as a problem at the factory where it was fabricated. As a result, the injury-causing
product is somehow different from all the other ones on the shelf. The injury must have been caused
by the manufacturing defect. 11

Defectively Designed Products

In this type of product liability category, a product's design is inherently dangerous or defective.
Defective design claims do not arise from some error or mishap in the manufacturing process, but
rather involve the claim that an entire line of products is inherently dangerous, regardless of the fact
that the injury-causing product was perfectly made according to the manufacturer's specifications.
The injury must have been caused by the defective design.12

Failure to Provide Adequate Warnings or Instructions

The third type of product liability claim involves a failure to provide adequate warnings or
11 Types of Defective Product Liability Claims
Available at http://www.nolo.com/legal-encyclopedia/types-of-defective-product-liability-30070.html
12 Id. [8].

instructions about the product's proper use. Failure-to-warn claims typically involve a product that
is dangerous in some way that's not obvious to the user or that requires the user to exercise special
precautions or diligence when using it. The injury must result from the failure to warn or properly
instruct.13
12

Comparing the Three Types of Product Liability Claims

Claims involving pharmaceutical drugs provide a useful way of comparing the three types of
product liability claims. If you are injured because the particular bottle of cough syrup you bought
happens to contain several drops of arsenic that fell into it by accident at the factory where it was
made, your claim would be based on a manufacturing defect.
By comparison, if taking that same brand of untampered-with cough syrup caused you to suffer a
heart attack because of its normal ingredients, your claim would be based on a design defect.
Finally, if the cough syrup was made correctly and is generally safe for use, but you were injured
because you combined it with aspirin and the label failed to warn that such a combination is
dangerous, your claim would be based on a failure to warn. By understanding these differences, you
will better be able to identify your product liability claim and correctly present your case in court.14

13 Types of Defective Product Liability Claims, supra note at 8.

14 Types of Defective Product Liability Claims, supra note at 8.

13

Chapter 2
What are the tort Theories on product liability?
An injured person seeking to recover damages for harm inflicted by an unavoidably and
unreasonably dangerous product may choose from among several possible causes of action on the
torts menu. The most likely are negligence, in its traditional form, and the theory of strict liability
employed against the makers of defective, unreasonably dangerous products. Other possibilities
include strict liability for abnormally dangerous activities, and absolute liability15

Negligence
The contemporary law of negligence begins with the general principle that whenever a person
knows or should know that what she is about to do might create an unreasonable risk of harm to
another, she has a duty to use reasonable care to avoid creating that risk. 16Courts have tempered this
principle by placing limitations upon the legal obligations owed by certain classes of defendants.17
The decision to do an unreasonably dangerous deed may constitute actionable negligence, even
15

Joseph A. Page,Liability for Unreasonably and Unavoidably UnsafeProducts: Does Negligence doctrine Role to
Play (1996),Chicago-Kent Law Review,p.94,
<http://scholarship.law.georgetown.edu/cgi/viewcontent.cgiarticle=2151&context=facpub>

16 Leon Green has referred to this principle as the "danger" test. See Leon Green, The Duty Problem in
NegligenceCases, 28 COLUM. L. REv. 1014, 1028 (1928). It originally derived from a proposition put forward by
Brett, M.R., in Heaven v. Pender, 11 Q.B.D. 503, 509 (1883): Whenever one person is by circumstances placed in
such a positionwith regard to another that every one of ordinary sense who did think would at once recognise that if
he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger
of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.
17 The duty element in negligence permits courts, as a matter of law, to curtail the responsibilities owed by classes of
defendants to classes of plaintiffs. Notable examples are the limited duties owed by possessors of land to various
categories of entrants upon the land. .

though the actor performed it with reasonable care under the circumstances. Similarly, if a
defendant had an alternative course of conduct that would not carry with it an unavoidable, undue
risk, the failure to exercise that option might constitute negligence.18
If a defendant's choice was between performing the unduly risky activity or abstaining, the decision
to act might constitute negligence.19
14
The recognition of the duty, or the refusal to recognize the duty, should apply to all product
manufacturers.20

Strict Product Liability

The doctrine of strict-tort products liability emerged from section 402A of the Restatement
(Second) of Torts, which promulgated the black-letter rule holding sellers responsible for harm
caused by their defective, unreasonably dangerous products.21Originally applicable to food,22and
then to products for "intimate bodily use",23this rule, rather late in its development, was further
stretched by drafters to cover all products.24
Strict tort liability once helped plaintiffs by restricting affirmative defenses that
defendants might assert because the Restatement recognized only a limited form of assumption of
risk that amounted to a form of contributory fault. 25The adoption of comparative negligence by
courts as an affirmative defense in strict-tort products cases.

18 Vigneault v. Dr. Hewson Dental Co., 15 N.E.2d 185 (Mass. 1938) (finding of negligence by court where dentist a
dangerous method of anesthetization despite the availability of a reasonably safe alternative).
19 . The decision to engage in a noisy construction project, despite knowledge that female minks whelping nearby
might kill their young because of noise fright, might be considered negligent. See Hamilton v. King County, 79 P.2d
697 (Wash. 1938) .
20 If a court were to exempt the manufacturers of some types of goods from productcategory liability, it would be
inviting those manufacturers subjected to potential product-category liability to mount a constitutional challenge
based upon the denial of equal protection. For an example of an unsuccessful challenge in the product-liability
context, see In re Asbestos Litigation, 829 F.2d 1233, 1244 (3d Cir. 1987) (asbestos producers might be subjected to
stricter standards of liability than other manufacturers).
21 402A. Special Liability of Seller of Product for Physical Harm to User of Consumer:
(1) One who sells any product in a defective condition unreasonably dangerous to the
user or consumer or to his property is subject to liability for physical harm thereby
caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold ....
RESTATEMENT (SECOND) OF TORTS 402A(1) (1965).
22 RESTATEMENT (SECOND) OF TORTS 402A (Tentative Draft No.6, 1961).
23 RESTATEMENT (SECOND) OF TORTS 402A (Tentative Draft No. 7, 1962).
24 RESTATEMENT (SECOND) OF TORTS 402A (Tentative Draft No. 10, 1964).
25 RESTATEMENT (SECOND) OF ToRTS 402A, cmt. n (1977) ("the form of contributory negligence which
consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the
name of assumption of risk, is a defense under this Section .... ").

Tortious Misrepresentation

A claim in a products liability suit may be based on false or misleading information that is conveyed
by the manufacturer of a product. A person who relies on the information conveyed by the seller and
who is harmed by such reliance may recover for the mis-representation. This basis for recovery
does not depend on a defect in the product, but rather depends on the false communication.26
15
Tortious misrepresentation may appear in one of three basic forms.
First, a person may commit fraudulent misrepresentation, or deceit, in which the person knows that
a statement is false and intends to mislead the plaintiff by making the statement.27
Second, a person may commit negligent misrepresentation, where the person was negligent in
ascertaining whether a statement was true.28
Third, some jurisdictions allow for strict liability in instances where a manufacturer makes a public
statement about the safety of a product.29

Warranty
A warranty is a type of guarantee that a seller gives regarding the quality of a product. A warranty
may be express, meaning that the seller makes certain representations regarding the quality of a
product. If the product's quality is less than the representation, the seller could be liable for breach
of express warranty. Some warranties may also be implied due to the nature of the sale.30

26 Legal Basis for liability in Product Cases,

available at http://injury.findlaw.com/product-liability/legal-basis-for-liability-in-product-cases.html
27 Id. [23]
28 Legal Basis for liability in Product Cases,supra note at 23.
29 Legal Basis for liability in Product Cases,supra note at 23.
30 Legal Basis for liability in Product Cases,supra note at 23.

16

Chapter 3
What are the Fixation of product liability theories developed by courts?

1) Market Share Liability

Market share liability is a theory developed by courts of awarding damages to a plaintiff when it is
impossible to figure out which defendant is responsible for the plaintiffs injuries due to which are
fungible mass-marketed product and unable to identify which comapny is the manufacturer. For
this purpose, market share liability developed by courts to make each defendant responsible pay the
damages according to the same market share percentages the companies have for the product
accordingly to the plaintiff.Market share liability is a modern evidentiary tool 31 used
to help the plaintiff in identifying the causation in case of an injury.The
concept of market share liability allows plaintiffs harmed by fungible products
to recover damages even though they are unable to identify the defendant
manufacturer of the product.The theory is not used much today,it is mainly
used in cases related to drug manufacturers.Also, the cases related to the
theory have not awarded punitive damages and court till date have thought its
not fair to award punitive damages according to the market share.

Evolution of the Theory of Market Share Liability

31 Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055 (N.Y. 2001)

The theory evolved in the case of the Sindell v. Abbott Laboratories 32,where Supreme Court of
California set the foundations of doctrine of market share liability.The background of the case is
that the plaintiff,a young woman had developed vaginal tumors due to use of diethylstilbestrol
(DES) by her mother during pregnancy.In those days,when her mother used this DES many
companies had manufactured this drug. It was not possible for the plaintiff to identify the
manufacturer of the DES drug her mother had consumed as the drug was a fungible product and a
lot of time had passed.

17

The majority decison of the court by associate justice Stanley Mosk,it decided to impose a new kind
of liability known as the market share liability .
There was dissent by associate justice Frank K. Richardson,who accused the other judges of judicial
activism and recommended that the legislature should make laws for solutions these kind of cases.

Future cases and applicability of the theory outside DES

In a similar case in Wisconsin called the Collins v. Eli Lilly Co 33,a new and different aproach was
taken by the courts,it found that the plaintiff could bring the cause of action on a single defendent
and where the burden of proof would shift to defendent,where the defendent would have to prove
whether the DES drug was taken was manufactured by them.
Several attempts were to make the market share liability more applicable to other products.Courts in
several instances have not accepted the market share liability theory approach :
1) Asbestos case-Becker v. Baron Bros34
2) Handguns case-Hamilton v. Beretta 35
3) Lead paint case-Santiago v. Sherwin Williams Co 36
However,the approach of the theory has been expanded and applied to In re Methyl Tertiary Butyl
Ether37 case in New york.

32
33
34
35
36
37

Sindell v. Abbott Laboratories (1980) 26 C3d 588

Collins v. Eli Lilly Co 116 Wis.2d 166, 342 N.W.2d 37 (1984)
Becker v. Baron Bros., 649 A.2d 613 (N.J. 1994)
Hamilton v. Beretta 222 F.3d 36 (2000)
Santiago v. Sherwin Williams 782 F.Supp. 186 (1992)
In re Methyl Tertiary Butyl Ether 739 F. Supp. 2d 576 (S.D.N.Y. 2010)

18

2)Alternate Liability
Alternative liability theory is a theory developed by Californa Supreme Court.It is one of most
influencial legal doctrines impacting the product liaility law of the United States. It is a doctrine
that allows a plaintiff(injured party) to shift the burden of proving the casuation of her harm to
more than one defendants, though only one would have been responsible. The case where this
doctrine of alternative liability evolver in the case of Summers v. Tice38.

Evolution of the Theory of Alternate Liability

The theory evolved in the case of Summers v. Tice.Summers (Plantiff), Tice, and Somonson
(Defendantss) were hunting quail. Tice flushed a quail which flew between Summers and the
defendants. Defendants fired their shotguns and Summers was struck in the eye and upper lip.The
issue in the case was if two defendants are negligent in concert and damage is caused such that only
one or the other would be liable, which party will be held liable for the damage if the plaintiff is
unable to show which defendant in fact caused the injury?39
The holding of the case was If two defendants are negligent in concert and
damage is caused such that only one or the other would be liable, both defendants will be liable for
the damage if the plaintiff is unable to show which defendant in fact caused the injury. When a party
38 Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1 (Cal. 1948).
39 Summers v. Tice Case Brief Summary,available at http://www.lawnix.com/cases/summers-tice.html

is harmed as a result of the tortious conduct of another, a third party is liable if he (1) knows that the
conduct of the person causing the harm constitutes a breach of duty and gives substantial assistance
or encouragement, or (2) gives substantial assistance to the person causing the harm in
accomplishing a tortious result, where the conduct of the third party, separately considered,
constitutes a breach of duty to the injured party.40
The case in public policy perspective was Each joint tortfeasor is responsible for the whole
damage because of the practical unfairness of denying an injured person redress simply because he
cannot prove how much damage each party did, when it is certain that between them they did
all.The case was affirmed to Summers. 41
19

Chapter 4
What are the developments in India with respect to product liability law?

Product Liability under the laws of India

In India, Product liability law, also called products liability, governs the liability of
manufacturers, wholesalers, distributors, and vendors for injury to a person or property caused by
dangerous or defective products. The goal of product liability laws is to help protect consumers
from dangerous or defective products, while holding manufacturers, distributors, and retailers
responsible for putting into the market place products that they knew or should have known were
dangerous or defective. 42
In India, as a general rule the principles of English law have been deemed to be applicable. The
Indian Courts adopted English principles, if the same were in consonance with the concept of
justice, equity and good conscience in India. In India, there has been very little tort litigation and
fewer cases used to go to High Courts and Supreme Court, this was due to the lack of consciousness
about ones rights and the spirit of toleration.43
The numerous cases of injury to or death of numerous persons due to spurious and injurious
foodstuffs, medicines, liquor, etc., suffering due to wrong and negligent treatment in the hospitals,
loss due to voltage fluctuations or unannounced power cuts, damage due to contaminated water,
atmospheric pollution and hundreds of such injuries were put up with without bringing any action in
40 Id. [36]
41 Summers v. Tice Case Brief Summary,supra note at 36.

42 Product Liability Law in India,Seth Associates,

available at http://www.sethassociates.com/1749.html .
43 Product Liability Laws in India,Indian Lawyer(2009),
available at http://anindianlawyer.blogspot.in/2009/06/poduct-liability-laws-in-india.html .

a court of law.The goal of product liability laws is to help protect consumers from dangerous or
defective products, while holding manufacturers, distributors and retailers responsible for putting
into the market place products that they knew or should have known were dangerous or defective.44
We have referred to following while responding to the Queries raised:
(i) Law of Torts as laid down by Courts through Precedents;
(ii) The Consumer Protection Act, 1986 (the CPA);
(iii) The Monopolies and Restrictive Trade Practices Act, 1969 (the MRTP Act);
(iv) The Sale of Goods Act, 1930;
(v) The Indian Contract Act, 1872;45
20
Brief note on the Law relating to Product Liability in India.

Indian Contract Act, 1872

The Indian Contract Act, 1872 governs the contractual relationships other than relating to Sale of
Goods and Partnership for which specific acts are available. The said statute provides for norms
regarding formation of the contract, performance of the contract, consequences of breach of
contract, indemnities, guarantees, bailment, agency etc.46

Sale of Goods Act, 1930

Sale of Goods Act, 1930 provides for formation of the contract of sale, subject matter of the
contract, price of sale, conditions and warranties to sale, implied conditions are to quality and
fitness, transfer of property between seller and buyer, transfer of title, performance of contract,
consequence of breach of contract of sale. Apart from legal remedies available to an unpaid seller,
the Sale of Goods Act, 1930 also provides for a remedy for a breach of warranty, damages for nondelivery and breach of contract for sale.47
In terms of the provisions of the Sale of Goods Act, 1930, relief could be claimed by an aggrieved
party by presenting a suit before a civil court. This would entail payment of court fee, undergoing
procedure of trial, engaging a lawyer and endless wait due to high pendency of litigation with the
44
45
46
47

Id. [26].
Product Liability Laws in India, supra note 26.
Product Liability Laws in India, supra note 26.
Product Liability Laws in India, supra note 26.

lower courts in India. Generally this dissuaded the aggrieved party from initiating litigation against
a big manufacturer for a small claim.48

Common law principles of tort of negligence

India is a country that follows English common law. As on date it is open to a consumer or a buyer
of goods to file a claim with a court having jurisdiction to try civil cases against the manufacturer
for compensation for any loss or injury that is caused due to the negligent action or inaction of
manufacturer or its distributors. Law relating to negligence is based on precedents established by
courts of India.
21

Very often in cases that relate to negligence, courts in India rely on law of torts prevailing in
England or other countries that follow principles of common law.49
The disadvantage of initiating a claim for negligence before a civil court is that the onus of proof
before a civil court is upon the consumer or the buyer, which he is required to discharge in a trial.50

As discussed in succeeding paragraphs a consumer forum is also vested with power to grant
damages (including punitive damages) for negligent conduct of manufacturer to a buyer or a
consumer, therefore, consumer or buyer may choose a consumer forum over a civil court as
procedure followed by consumer forums does not require that negligence is to be proved in a trial
but by way of affidavits. However, as regards substantive law, even consumer courts rely on the law
laid by precedents in India or follow law of torts prevailing in England.51

Consumer Protection Act, 1986

The year 1986 was a revolutionary year for consumers in India. In the year 1986, the Consumer
Protection Act, 1986 was enacted. In terms of the Consumer Protection Act, 1986, a consumer who
was sold a defective goods or is a recipient of deficient service can file a complaint before a
consumer forum (either a district or state or national depending upon the quantum of claims). In
48
49
50
51

Product Liability Laws in India, supra note 26.

Product Liability Laws in India, supra note 26.
Product Liability Laws in India, supra note 26.
Product Liability Laws in India, supra note 26.

terms of the Consumer Protection Act, 1986, if the consumer forum finds that there was a defect or
deficiency in service than it can award compensation to the aggrieved consumer.52

There are 604 District Consumer Dispute Redressal Forums in India. District Consumer Dispute
Redressal Forums have jurisdiction to entertain claims worth INR 2,000,000 or less. Since the
establishment of the District Consumer Dispute Redressal Forums, approximately 2,667,277 (two
million six hundred and sixty seven thousand two hundred and seventy seven) consumer complaints
have been filed out of which 2,424,116 (two million four hundred twenty four thousand and one
hundred and sixteen) consumer complaints have been disposed off.53
22
Every State has a State Consumer Dispute Redressal Forum. There are 35 State Consumer Dispute
Redressal Forum spread in various states all across India. State Consumer Dispute Redressal
Forums have jurisdiction to entertain claims above INR 2,000,000 to INR 1,00,00,000 . This forum
also has the jurisdiction to hear first appeal arising from the order of District Consumer Dispute
Redressal Forums. Since the establishment of the State Consumer Dispute Redressal Forums,
approximately 472,146 (Four hundred seventy two thousand one hundred and forty six) consumer
complaints and appeals have been filed out of which 361,502 (three hundred sixty one thousand and
five hundred and two) consumer complaints have been disposed off.54

India has a National Consumer Dispute Redressal Forum. The National Consumer Dispute
Redressal Forum has jurisdiction to entertain complaints where the amount claimed is more than
INR 1,00,00,000 . This forum also has the jurisdiction to hear appeal from an order passed by State
Consumer Dispute Redressal Forum or to suo moto review the order of National Consumer Dispute
Redressal Forum. Since the establishment of the State Consumer Dispute Redressal Forum
approximately 58,143 (fifty eight thousand and one hundred forty three) consumer complaints and
appeals have been filed out of which 49,095 (forty nine thousand and ninety five) complaints have
been disposed off.55
The Consumer Protection Act, 1986, provides for the following benefits to an aggrieved consumer:
(i)

A consumer dispute redressal forum was established in almost every district in India. This

provided greater accessibility to the aggrieved consumers across India;56

52 Product Liability Laws in India, supra note 26.
53 Product Liability Laws in India, supra note 26.
54 Product Liability Laws in India, supra note 26.
55 Product Liability Laws in India, supra note 26.
56Product Liability Laws in India, supra note 26.

(ii)

evidence before the forum can be lead on a sworn affidavit. This provided an expeditious

summary trial and saved the parties to the litigation from an embarrassment of trial. Due to this
matters were resolved within reasonable time.57
(iii) Civil courts in India have jurisdiction to entertain any civil dispute. This meant higher numbers
of cases were filed before civil courts and attention of the courts was always on important matters.
This led to delay in disposal of cases filed by an aggrieved consumer. Since consumer forums are
alternate to a civil court, it provides for speedier disposal of such complaints.

23
(iii)

These forums have higher disposal rate of approximately 90% and it takes approximately

10-12 months for a consumer forum to decide a consumer complaint.58

(iv) appellate forum in form of consumer forums at State and National level; again providing a
remedy in form of appeal to an aggrieved consumer also enhancing the speedier disposal of
complaints, otherwise, in terms of prevailing law in India, a writ would have to be preferred before
the High Court under whose supervision a particular district forum is and this would have again led
to delay in justice to a suffering consumer.59
(v) The proceedings before these forums are informal and there is no necessity for an aggrieved
complainant to hire or appoint a lawyer.60
(vi) a consumer can seek remedy for (i) defect in goods; (ii) deficiency in service (breach of
warranty is treated as deficiency in service); (iii) Unfair Trade Practice; (iv) Restrictive Trade
Practice; and (iv) Negligence. In other words, the relief which could be sought jointly under the
Sale of Goods Act, 1930, MRTP Act, 1969 and Common Law of torts can be sought in terms of
Consumer Protection Act, 1986. Further, the Consumer Protection Act, 1986 is in furtherance to and
in not in derogation of other prevailing laws on India.61
(vii) Another reason due to which the Consumer Protection Act, 1986 is effective is that it refrains
the consumer forums to indulge in matter which are commercial in nature. This means that any
dispute which does not involve an end consumer is not entertained. Therefore, since consumer
forums do not have jurisdiction over such matter, complaints are restricted only to a complaint by a
consumer, which result in quick disposal of cases.62
57Product Liability Laws in India, supra note 26.
58Product Liability Laws in India, supra note 26.
59 Product Liability Laws in India, supra note 26.
60 Product Liability Laws in India, supra note 26.
61 Product Liability Laws in India, supra note 26.
62 Product Liability Laws in India, supra note 26.

(viii) In terms of the provisions of Consumer Protection Act, 1986, the Consumer Forum has the
power to grant following reliefs to the complainant and as against the manufacturer:
a. To remove the defects from the goods;
b. To replace the defective goods;
c. To return to the complainant price and charges paid to manufacturer;
d. To award damages (including punitive damages) for any loss or injury suffered due to negligence
of the manufacturer or its dealer;
e. To remove deficiency in services;
f. To discontinue the unfair trade practice or restrictive trade practice and not to repeat them;
g. Not to offer hazardous goods for sale;
24
h. To withdraw hazardous goods from being offered for sale;
i. To cease manufacture of hazardous goods and desist from offering services hazardous in nature;
j. To award claims in a class action;
k. To issue corrective advertisements to neutralize the effect of misleading advertisements;
l. To provide for adequate costs to parties.63
In light of the aforementioned powers vested in consumer forums, it seems that Consumer
Protection Act, 1986 is a complete code for any matter related to product liability.
(iv)

(x) Few noteworthy cases which are decided by the forums constituted under the Consumer

Protection Act, 1986 are:

(a) Complainant, a Charitable Hospital alleged that the Argon Lazer Unit was supplied to it by
Opposite Party was defective. The National Commission held that since Argon Lazer Unit was used
by a hospital though charitable but was a profit generating centre and was run on commercial basis,
the mere fact that it provided free treatment did not change its character of being run on commercial
basis. The complaint by such complainant was not maintainable as unit was purchased for
commercial purpose.64

(b) Courts in India have recently become more aggressive in awarding punitive damages as
compensation. In a recent case of medical negligence, the Honble Supreme Court of India awarded
a sum of INR 1,00,00,000.65

63 Product Liability Laws in India, supra note 26.

64 Product Liability Laws in India, supra note 26.
65 Product Liability Laws in India, supra note 26.

(c) Complaint alleging existence of some foreign material in the Osto-calcium syrup purchased by
the Complainant. Held that the contents of the bottle were defective goods and nominal
compensation was awarded.66

(d) Complaint alleging death due to sale of spurious injection. No proof as to whether the injection
sold to the Complainant was spurious or not. Complaint was dismissed for want of proper and
collective evidence.67
25

Criminal Liability in terms of Product Liability

In addition to the civil liability, criminal product liability claims may be made in case of noncompliance with the provisions of the following Acts:

(a) The Foods Adulteration Act, 1954

(b) The Food Safety and Standards Act, 2006
(c) The Drug & Cosmetics Act, 1940
(d) The Indian Penal Code, 1860
(e) The Standards of Weights and Measures Act, 1956
(f) The Agricultural Produce (Grading and Marking) Act, 1937 for marking and grading of
commodities like vegetables, butter, etc.
(g) The Indian Standards Institution (Certification Marks) Act, 1952 to formulate a number of
standards for different products by ISI.
(h) The Bureau of Indian Standards Act, 1986

Each of the aforesaid Acts provides for imposition of fine and/or imprisonment in case of supply of
defective products or adulterated consumables.68

66 Product Liability Laws in India, supra note 26.

67 Product Liability Laws in India, supra note 26.
68 Product Liability Laws in India,Indian Lawyer(2009),
available at http://anindianlawyer.blogspot.in/2009/06/poduct-liability-laws-in-india.html

The Food Safety and Standards Act, 2006 is the most recent legislation which comprehensively
deals with food and safety standards which are to be complied with by manufacturers and
producers, non-compliance of which imposes a liability, upon defaulters, of fine, extending upto Rs.
Ten Lakhs and/or imprisonment.69

26

The provisions of Indian Penal Code (IPC), on the other hand, in respect of product liability, are
attracted when the element of cheating and fraud can be attributed to such defects. For example, in
the case of Smt. Uma Deepak v. Maruti Udyog Ltd Ors 70,(the Complainant alleged that the car sold
by the opposite party was not only accidental but the price, for the same, was also overcharged. The
Court, in response to the allegations made by the complainant, directed arrest of the Directors as
well as the manager of the dealers/agents who sold the said defective car to the complainant and
remanded them to judicial custody. Subsequent thereto, the said officers of the opposite party were
released on bail and were directed to replace the disputed car with a new car.71

Provisions of IPC are also attracted to provide punishment to offenders for false weights and
measures , adulteration of goods ( food, drugs etc -6 months imprisonment, fine of 1000 rupees or
both), and false property marks ( one year imprisonment, fine or both). The period of limitation as
per Section 468 of the Criminal Procedure Code is 6 months if offence is punishable with fine only ,
and one year if offence is punishable with upto one year imprisonment and three years if offence is
punishable with imprisonment of above one year and upto three years.72

The provisions of the Standards of Weights and Measures Act, 1976 are attracted in case of any
false packaging, weight or measure which does not conform to the standards established by or under
the said Act and breaches the mandatory declaratory requirements on a package. If any mandatory
69
70
71
72

Seth Associates,supra note 1

Smt. Uma Deepak vs Maruti Udyog Limited And Ors. I (2003) CPJ 90 MRTP
Seth Associates,supra note 1
Seth Associates,supra note 1

declaration is found missing on the package a fine of upto 2000 rupees shall be levied as per Rule
39 of the Standards of weights and measures packaged commodity rules.73
The Drugs and Cosmetic Act, 1940 also provides for criminal liability for manufacturers and
producers of medicinal products or cosmetics etc, which do not adhere to the prescribed standards.74

27

The other cases relating to product liability are Syngenta India Limited v P. Chowdaiah S/o P.
Naganna and others75(case relating to defective seeds),Chief Manager, Allahabad Bank, Okhla
Industrial Estate Branch and another v Paper Product Machines Through its Partner P. L.
Birla76(case relating to deficiency of services by Allahabad Bank in banking services of money
transfer through cheque deposit ), Pushpanjali Farm Owners and Residents Association, Bijwasan v
Ansal Properties

and Industries

Limited77(case relating to delay in construction of

houses),Pradeshik Co-Operative Dairy Federation Limited through its Manager Administration

Complainant v United India Insurance Company Limited and others 78(case relating to deficiency of
services by United Indian Insurance Company in matter of insurance claim), Great Eastern
Appliances Private Limited v Santosh Kumar Kanodia @ S.K. Kanodia and another 79(case relating
to defective product),Punjab Tractors Limited v P. Sanghasena and another 80(case relating to
defective product),Sahib Exports India, through Partner Manjit Singh, New Delhi v New India
Assurance Company Limited, Through Divisional Manager, New Delhi 81(case relating to deficiency
of service by New India Assurance Company Limited in the matter of insurance claim),Coca-Cola
73
74
75
76
77
78
79
80
81

Seth Associates,supra note1

Seth Associates,supra note 1
Syngenta India Limited v P. Chowdaiah S/o P. Naganna and others,(2013)Indlaw NCDRC 309 .
Chief Manager, Allahabad Bank, Okhla Industrial Estate Branch and another v Paper Product Machines Through
its Partner P. L. Birla,(2012) Indlaw NCDRC 165 .
Pushpanjali Farm Owners and Residents Association, Bijwasan v Ansal Properties and Industries Limited, 2012
Indlaw NCDRC 212; 2012 (4) CPJ(NC) 1
Pradeshik Co-Operative Dairy Federation Limited through its Manager Administration Complainant v United
India Insurance Company Limited and others,2012 Indlaw NCDRC 266; 2012 (3) CPJ(NC) 268 .
Great Eastern Appliances Private Limited v Santosh Kumar Kanodia @ S.K. Kanodia and another,2011 Indlaw
CAL 425 .
Punjab Tractors Limited v P. Sanghasena and another,2011 Indlaw NCDRC 83; 2011 (1) CPJ(NC) 293.
Sahib Exports India, through Partner Manjit Singh, New Delhi v New India Assurance Company Limited, Through
Divisional Manager, New Delhi, 2011 Indlaw NCDRC 1; 2011 (87) ALR 102; 2011 (3) CPJ(NC) 297.

India (P) Limited v Dr. Amarjit Singh and another82(case relating to deficiency of service),Wipro
Limited, (Formerly known as Wipro Infotech Limited), Bangalore v Toppers Multimedia (P) Limited
and others83(case relating to supply of defective product by the defendant)

28

Conclusion
In India,tort laws have not developed primarily because of two reasons:
1)Concept of Court fees
2)Complex Judicial system
The rise of product liability in India is still in its foundation stages but in the countries like the
United States and the United Kingdom there is much more vigilant consumer protection.Consumer
protection laws in India have not been stringent enough due lack of awareness among consumers.
The consumer laws are very fast growing now as consumers are getting
awareness about their rights and have become more serious about the issue of defective
products.The government is playing an important in this process as it is one making these stringent
laws for helping the public.Most important act was Consumer Protection Act,1986,where several
redressal courts were set up to solve the greveiances of the consumers.
The Courts in India are now open to giving exemplrary damages to the manufactures of
defective products.This will act as an hindrance to the manufacturers would be more careful while
manufacturing and selling the products.

82 Coca-Cola India (P) Limited v Dr. Amarjit Singh and another,2010 Indlaw NCDRC 288 .
83 Wipro Limited, (Formerly known as Wipro Infotech Limited), Bangalore v Toppers Multimedia (P) Limited and
others ,2010 Indlaw NCDRC 13; 2010 (4) AWC 4.104; 2010 (2) CPJ(NC) 39 .

29

References
Ratanlal & Dhirajlal,The Law of Torts by Justice G P Singh
Winfield & Jolowicz on Law of Tort by W.V.H Rogers
Aspen -Product Liability

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