UNIVERSITY OF PETROLEUM & ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

B. A. L.L. B (HONS.)- B
SEMESTER-III
ACADEMIC YEAR: 2015-16

SESSION: JULY-DECEMBER

PROJECT
NEED FOR CODIFICATION OF LAW OF TORT
FOR
Law of Tort
Under the Supervision of: Ms. Pooja Gautam
NAME:
SAP NO:
500028447
ROLL NO:
R450213064

LOVLEEN MISHRA

Table of Content
I.

II.

Table of authorities.
1.

Cases

2.

Statutes

3.

Internet Sources

4.

Articles & Other Sources

Introduction.
1.

Definition

2.

Kinds of torts

III.

Evolution and development of tort law.

IV.

Indian Scenario

V.

Torts law in India

VI.

Need for reforming and codifying tort law

VII. Special case analysis

1.

Bhopal Gas Tragedy

2.

Uphaar cinema case

VIII. Conclusion

CASES
1.
2.
3.
4.
5.
6.
7.

Donoghue v. Stevenson's
Smt Nilabati Behra aliaslalit 1993 SCR (2) 581 v state of Orissa
Rylands v. Fletcher
M.C.Mehta v. Union of India
Union Carbide Corporation Ltd. vs. Union Of India
Municipal Council, Ratlam vs. Vardichan And Ors
Lata Wadhwa vs. State of Bihar

8. K. Venkateshwarlu vs. Managing Director, Nagarjuna1

9. Kewal Chand Mimani(d) by Lrs. v S.K. Sen. and Ors2
10.Bhim Singh v. State of Jammu and Kashmir3
11.Rudal Shah v. State of Bihar4
12.Harikrishan and State of Haryana v. Suhbir5

1 K. Venkateshwarlu vs. Managing Director [2005], [2006] CPJ 47 NC

2 Kwela Chand Mimani(d) by Lrs. v S.K. Sen and Ors [2001], 3 SCR 1056.
3Bhim Singh v. State of Jammu and Kashmir AIR [1986], SC 494
4 Rudal Shah v. State of Bihar[1983] SC 1036

5Harikrishan and State of Haryana v. Suhbir AIR [1988], SC 2127, p.2131

3

STATUTES
1. THE MOTOR VEHICLES ACT, 1988
2. THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT 1974,
3. THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981

INTERNET SOURCES
1. http://www.nolo.com/legal-encyclopedia/workplace-injury-lawsuit-sue-30334.html
2. http://www.britannica.com/EBchecked/topic/507759/Roman-law
3. http://chdslsa.gov.in/right_menu/act/pdf/codecivil.pdf
4. http://bombayhighcourt.nic.in/data/original/2012/APP21512020512.pdf
5. http://chdslsa.gov.in/right_menu/act/pdf/consumer.pdf
6. http://indiankanoon.org/doc/983382/
7. http://law.psu.edu/_file/aglaw/Pennsylvania_Nuisance_Law.pdf
8. lawmin.nic.in/legislative/Art1-242%20(1-88).doc
9. http://dictionary.cambridge.org/dictionary/british/injunction
10. http://www.vakilno1.com/bareacts/crpc/the-code-of-criminal-procedure-1973-crpc-2ndpage.html#357_Order_to_pay_compensation
11. http://chddistrictcourts.gov.in/THE%20SPECIFIC%20RELIEF%20ACT.pdf
12. http://www.indiankanoon.org/doc/1041742/
13. http://www.merriam-webster.com/dictionary/locus%20standi
14. http://www.sscnet.ucla.edu/southasia/History/Current_Affairs/Bhopal_indepindia.html
15. http://www.ucaqld.com.au/community/bhopal

INTRODUCTION

Definition of Tort
The term tort is the French equivalent of the English word wrong6. The word tort is also derived from
the Latin word tortum7, which means twisted or crooked or wrong, in contrast to the word rectum,
which means straight (rectitude uses that Latin root). Thus conduct that is twisted or crooked and not
straight is a tort. The term was introduced into the English law by the Norman jurists.
Earlier the word tort was used in everyday speech; today it is left to the legal system. A judge will
instruct a jury that a tort is usually defined as a wrong for which the law will provide a remedy, most
often in the form of money damages. The law does not remedy all wrongs. The preceding definition of
tort does not reveal the underlying principles that divide wrongs in the legal sphere from those in the
moral sphere. Hurting someones feelings may be more devastating than saying something untrue about
him behind his back; yet the law will not provide a remedy for saying something cruel to someone
directly, while it may provide a remedy for "defaming" someone, orally or in writing, to others i.e. law
seeks to provide justice for a legal injury8 which may be defined specifically by the legal system of an
country.
Although the word is no longer in general use, tort suits are the stuff of everyday headlines. More and
more people injured by exposure to a variety of risks now seek redress i.e. a sort of remedy through the
6The word is derived from Old French and Anglo-French "tort" (injury), which is derived
from Medieval Latin tortum, See Online Etymology Dictionary
7. The word is derived from Old French and Anglo-French "tort" (injury), which is derived
from Medieval Latin tortum, See Online Etymology Dictionary
8 The Cambridge Business English Dictionary (Cambridge University Press) Definition of
legal injury noun
6

courts. The everyday awarding of multimillion suits against doctors, factory owner etc are all examples
of compensation granted by the law to the plaintiff (the one who is wronged by a tort).
The law of torts developed almost entirely in the common-law courts 9; that is, statutes passed by
legislatures were not the source of law that plaintiffs usually relied on. Usually, plaintiffs would rely on
the common law (judicial decisions). Through thousands of cases, the courts have fashioned a series of
rules that govern the conduct of individuals in their no contractual dealings with each other. Through
contracts, individuals can craft their own rights and responsibilities toward each other. In the absence of
contracts, tort law holds individuals legally accountable for the consequences of their actions. Those
who suffer losses at the hands of others can be compensated.10
Commonly tort is confused with crime many acts (like homicide) are both criminal and tortuous. But
torts and crimes are different, and the difference is worth noting. A crime is an act against the people as a
whole11. Society punishes the murderer; it does not usually compensate the family of the victim. Tort
law, on the other hand, views the death as a private wrong for which damages are owed. In a civil case,
the tort victim or his family, not the state, brings the action 12. The judgment against a defendant in a civil
tort suit is usually expressed in monetary terms, not in terms of prison times or fines, and is the legal
systems way of trying to make up for the victims loss.

Kinds of Torts
There are three kinds of torts: intentional torts, negligent torts, and strict liability torts 13. Intentional torts
arise from intentional acts, whereas unintentional torts often result from carelessness (e.g., when a
9 Steve Russell A brief history of Indians, Torts and English common law
10 M. Bussani and A. Sebok eds. Edward Elgar (2013) Comparative Tort Law Research
Handbooks in Comparative Law, Tort Damages for Non-economic Losses (in cases of
physical injury to the person)
11 Ratanlal and Dhirajlal The law of torts 23rd edition (Wadhwa and company,Nagpur)
12 Goldberg JCP, the constitutional status of tort law: Due process and the right to a law
for the redress of wrongs. (Yale Law Journal 2005).
13 P. S. Atchuthen Pillai, The Law of Tort (Eastern Book Co, 8 Ed, 1987).
7

surgical team fails to remove a clamp from a patients abdomen when the operation is finished) 14. Both
intentional torts and negligent torts imply some fault on the part of the defendant. In strict liability torts,
by contrast, there may be no fault at all, but tort law will sometimes require a defendant to make up for
the victims losses even where the defendant was not careless and did not intend to do harm. The
standard action under tort is negligence15. The tort of negligence gives a cause of action This leads to
damages, or to relief, in each case planned to protect legal rights, including those of Private safety,
property, and, in some cases, intangible economic interests. Negligent actions Include claims coming
mainly from car accidents and private injury accidents of different kinds, Including clinical negligence,
workers negligence, etc. Product liability (warranties and the like) cases can also be considered as
negligence actions, but there is frequently a noteworthy overlay of some additional lawful content e.g.
Donoghue v. Stevenson's16.
Among intentional torts there may be certain torts coming from the occupation or use of land. One of
which is the tort of nuisance, which takes into account strict liability for a neighbor who hinders
anothers enjoyment of his own property17. Trespass permits owners to sue for entrances by an individual
(or his structure, for example - an overhanging building) on their land. There is also a tort of false
imprisonment, and another tort of defamation, where someone creates an unsupportable reason for
Arrest or their speech is not represented to be factual which somewhat damages the reputation of
another. Workers' compensation laws were a legislative answer to the common law torts order placing

14 P. S. Atchuthen Pillai, The Law of Tort (Eastern Book Co, 8 Ed, 1987).

15 Oxford university press , 11-negligence, 1 [2013]

16 Annual Survey of International & Comparative Law, Ferrari F. (1994). Donoghue v. Stevenson's
60th Anniversary

17 Pennsylvania Nuisance Law,The Pennsylvania State University, The Dickinson School of Law
Jeff Feirick, <http://law.psu.edu/_file/aglaw/Pennsylvania_Nuisance_Law.pdf >

Limits on to the extent to which workers could sue their employers in relation to injuries sustained
during employment.18
Codification of the tort law in India has been a much debated topic because in a country like India
Where there are very good codified laws like Code of criminal procedure and civil procedure code tort
law being undefined does question the Legislatives intent on bringing under control civil wrong, but the
legislative and the executive cannot only be blamed for tort as it is the societys tolerance level with civil
wrongs that defines how law of tort is implemented and the majority people in India who dont pay
much heed to other individuals rights it is difficult to bring about a sea of change even with codifying
tort law . But nonetheless it is an accepted fact that tort law is still in its nascent stage in India and still
underdeveloped because issues like fixing a particular perimeter for awarding compensation,
differentiating types of negligence are not addressed, even today in India cases are decided in India by
judges on superficial parameters like the paying power of the respondent. Although institutions like the
national consumer forum etc. have been formed to address grievances of the public but still they have
not been able to substitute for the impact that a codified tort law would have had in safeguarding
individual interest.

18 Workplace Injury: When You Can Sue Outside of Workers'

Compensation<http://www.nolo.com/legal-encyclopedia/workplace-injury-lawsuit-sue-30334.html>

Evolution and development of tort law

A tort is a civil wrong for which the remedy is an action for unliquidated damages and which is not
exclusively the breach of a contract, or the breach of a trust, or the breach of other merely equitable
obligation- Salmond 19
The term tort was introduced into the terminology of English Law by the French speaking lawyers and
Judges of the Courts of Normandy and Angevin Kings of England 20. As a technical term of English law,
tort has acquired a special meaning as a species of civil injury or wrong. Till about the middle of the
seventeenth Century tort was an obscure term, at a time when procedure was considered more important
than the right of an individual21. This emphasis on procedural aspect for determining the success for a
case continued for some 500 years, till 1852, when the Common Law Procedure Act was passed and
primacy of substance over the procedure gradually gained firmer ground. Today the maxim as it stands
is ubi jus ubi remedium22, i.e. where there is right there is remedy. Tort is the French equivalent of the
English word wrong and of the Roman law term delict23. It is expected out of everyone to behave in a
straightforward manner and when one deviates from this straight path into crooked ways he is said to
have committed a tort. Though many prominent writers have tried to define Tort, it is difficult to do so
for varied reasons. The key reason among this being, that the law of Torts is based on decided cases i.e.
19 John William Salmond, Jurisprudence, Or, the Theory of the Law. (1907)
20 John Gillingham, The Angevin Empire p 24
21 John Gillingham, The Angevin Empire p 24
22 oxford university press, ubi jus ibi remedium 2012
23 Encyclopedia Britannica <http://www.britannica.com/EBchecked/topic/507759/Romanlaw>
10

doctrine of precedence24 25. Judges while deciding a case, feel their primary duty is to adjudge the case
on hand rather than to lay down wider rules and hence they seldom lay down any definition of a legal
term. Furthermore the law of tort is still growing. If a thing is growing no satisfactory definition can be
given. Tort as we know today has evolved over the centuries and has grown tremendously in countries
such as the England, United States of America, and other progressive countries and to a certain extent in
India.

Indian scenario
In India the term tort has been in existence since pre-independence era. The Sanskrit word Jimha 26,
which means crooked was used in ancient Hindu law 27 text in the sense of tortuous of fraudulent
conduct. Most of Indian tort law was developed after the British colonization 28. The law of torts as
administered in India in modern times is the English law as found suitable to Indian conditions and as
modified by Acts of the Indian Legislature 29.The law of torts or civil wrongs in India is thus almost
wholly the English law, which is administered as rules of justice, equity and good conscience. Under the
24 An opinion of a federal or state court of appeals establishing a legal principle or rule
that must be followed by lower courts when faced with similar legal issues. For example,
once the California Supreme Court decided that employers may fire an employee who fails
a drug test because of his use of medical marijuana, all lower courts in California must
follow this rule, cornell law dictionary, Cornell law school
25 David H Moore Law(makers) of the land
26 Narada priyanath sen (Hindu Jurisprudence)
27 Madhu Kishwar, Codified Hindu Law, Myth and Reality, 29/33 Economic and Political Weekly
2145(1994),

28 Gerald James Larson, Religion and Personal law in Secular India, A call to Judgment, 272 (Indiana
University Press, Bloomington 2001)

29 Gerald James Larson, Religion and Personal law in Secular India, A call to Judgment,
272 (Indiana University Press, Bloomington 2001)
11

Hindu law and the Muslim law, tort had a much narrower conception than the tort of the English law.
The punishment of crimes in these systems occupied a more prominent place than compensation for
wrongs. The law of torts in India presently, is mainly the English law of torts which itself is based on the
principles of the common law of England.30

Torts law in India

During British rule, courts in India were enjoined by Acts of Parliament in the UK and by Indian
enactments to act according to justice, equity and good conscience if there was no specific rule of
enacted law applicable to the dispute in a suit 31. In regard to suits for damages for torts, courts followed
the English common law insofar as it was consonant with justice, equity and good conscience. They
departed from it when any of its rules appeared unreasonable and unsuitable to Indian conditions. An
English statute dealing with tort law is not by its own force applicable to India but may be followed here
unless it is not accepted for the reason just mentioned. The Indian courts before applying any rule of
English law can see whether it is suited to the Indian society and circumstances. The application of the
English law in India has therefore been a selective application. This fact is quite appreciated because
30 Steve Russell Brief history of Indians , torts and English common law
31 Steve Russell Brief history of Indians , torts and English common law
12

there is a difference in the societies and systems of Britain and India tort law is not codified in India.
This means whenever an exigency arises, a precedent shall be set up to take care of the peculiar
situation. During British rule, courts in India were enjoined by Acts of Parliament in the UK 32 and by
Indian enactments to act according to justice, equity and good conscience if there was no specific rule of
enacted law applicable to the dispute in a suit. In regard to suits for damages for torts, courts followed
the English common law in so far as it was consonant with justice, equity and good conscience. They
departed from it when any of its rules appeared unreasonable and unsuitable to Indian conditions. An
English statute dealing with tort law is not by its own force applicable to India but may be followed here
unless it is not accepted for the reason just mentioned.
There has been a pressing need in India to reform different sectors of law and torts which
continues to be ignored for a variety of reasons in India like
I.
II.

High litigation cost (thus the common man is discouraged to go to court)

The amount of time taken by the judiciary in awarding compensation is not worth waiting
for.

III.

Men of provisions of tort law are covered in CPC and CRPC so the ones uncovered are not
properly ruled on by the judges in courts.33

32 Steve Russell Brief history of Indians , torts and English common law
33 The Code of Criminal Procedure, 1973 (CrPc)<http://www.vakilno1.com/bareacts/crpc/the-codeof-criminal-procedure-1973-crpc-2nd-page.html#357_Order_to_pay_compensation>

13

Tort is the part of law where response to a personal or civil wrong or injury where the courts provide in
tort law it believed that by giving the remedy the court is restoring the victim to his or her former state
before the tort took place Given that in India it was believed that even if the constitution doesnt
particularly codifies tort law the other code like CPC 34 and CRPC35 would be able to cover the civil
wrongs and provide justice has failed now the state of civil cases related to tort in Indian courts are in
shambles.
Tort law is considered to be the development of an old maxim ubi jus ibi remedium36 (Every right needs
a Remedy).Understand of this underdevelopment regarding a deep-seated question in almost all systems
of law is that how to make a wrongdoer accountable in India where for e.g. in a tort like negligence
nobody ever finds out who committed the tort and only some lucky plaintiffs can find a solvent
defendant, P. S. Atiyah has called this situation as a "damages lottery37.

34 THE CODE OF CIVIL PROCEDURE, 1908 <http://chdslsa.gov.in/right_menu/act/pdf/codecivil.pdf>

35 Satya Prakash, CRPC section opens doors for better compensation Hindustan Times (New Delhi, June
10, 2010)

36 Oxford university press ubi jus ibi remedium

37P. S. Atiyah The Damages Lottery
14

Certainly, some of the features of the law of torts are which were developed in England are absent in
India. The Indian courts therefore, apply those principles to match the situations in India. This means
there is an altercation from the British law to suit the Indian conditions. This fact is quite appreciated
because there is a difference in the societies and systems of Britain and India tort law is not codified in
India. This means whenever an exigency arises, a precedent shall be set up to take Care of the peculiar
situation. This definitely is a good solution to cope up with civil matters in the largest democracy on the
planet. It has also been noted in the Union Carbide Case, that Section 9 of the Code of Civil Procedure 38,
which enables a Civil Court to try all suits of a civil Nature, impliedly confers jurisdiction to apply the
law of torts as principles of justice, equity and Good conscience.
This definitely is, providing a forum to try civil wrongs and making them a miscellaneous category. This
provides the courts with a wide array of jurisdiction. Nuisance 39, Negligence40, etc. are wrongs of a
different nature. It is definitely agreed that the simpler torts need Highlighting, but the problem again
remains the same. To overcome the same there should be courts specifically set for these small offences
or even bigger ones, of civil nature. The judicial activism 41 which has been present in certain cases like
the UCC Case42, or the Nilabati Behera43 case, is typical examples of development in constitutional tort.
This outlook has profoundly influenced the direction which tort law has taken.

38 Civil procedure code, s

9<http://bombayhighcourt.nic.in/data/original/2012/APP21512020512.pdf>

39 Merriam Webster online resource 2013, Nuisance

40 Twerski Negligence per Se and Res Ipsa Loquitur: Kissing Cousins. Wake Forest Law
Review [2009]
41 Christopher Wolfe, Judicial activism, Rowman & Littlefield
42 Union Carbide Corporation Ltd. vs. Union Of India (Uoi) [1994] (4) SCALE 973
43 Smt Nilabati Behra aliaslalit v state of Orissa [1993] SCR (2) 581
15

The concept of sovereign immunity has been axed; the vicarious liability of the state concept has been
recognized in several cases. Henceforth, it is very much evident that the magnum of the wrong, the
parties involved, and the gravity of the situation has decided (and continue to do so) the delivering of
judgments relating to torts. This fact shows that the judiciary is in fact, active on setting precedents on
tort law. There has been a scattered array of acts and statutes relating to different kinds of tort, like the
Motor Vehicles Act, 1988 44(it was also enacted in late 80s) and Water Pollution Act45, Air Pollution Act46
etc.
The Environment Protection47 also came up, as late as 1986, as an after effect of the Bhopal Gas
Tragedy. A land mark case needs mention here, because of the progressive approach of the Indian
Judiciary in this regard. A more stringent rule of strict liability than the rule then the rule in Rylands v.
Fletcher48 was laid down by the Supreme Court in M.C.Mehta v. Union of India49.

44 THE MOTOR VEHICLES ACT, 1988 Ministry of road and highway (59 OF 1988)

45 THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT 1974, the central and
state boards for prevention and control of water pollution.
46 THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT 1981, s (14), Ministry of environment
and forest, Government of India

47 The Environmental protection Act 1986, Ministry of environment and forest.

48 Rylands v Fletcher [1868] UKHL 1
49 M.C. Mehta And Anr vs. Union Of India & Ors [1986], [1987] AIR 1086
16

The Court gave the reasoning that the old rule of the common law did not meet the modern techniques
of science and industrial society.There is a need to depart from that rule whereby the industries ought to
be aware of their responsibility, if they are taking benefit out some hazardous business. This approach of
the Supreme Court clearly shows that there is no need for a settled or a model tort law structure in India.
Its so-called branches are now assuming different dimensions. A plethora of debates and agitations were
unleashed after the Bhopal Gas Tragedy and Environmental legislations came in. The crux remains the
there has been an importance given to the issues of global importance like environment protection,
which also finds a place in the law of tort. Assault50, battery51 etc. are smaller torts and there have been
provisions

incorporated

for

them

either

in

the

CPC

or

the

CRPC.

Thus, there is no need for a specific legislation dealing with Such small civil wrongs, but there is
certainly a need for the bigger ones because in a country like India where the bureaucracy is very corrupt
it is the bigger offenders like Warren Anderson who get away easily in the Bhopal gas tragedy case52.

Another thing, which needs highlighting at this juncture, is the Consumer Protection Act 53, in India. It
has assumed a different jurisprudence altogether and has become a different stream in itself. It also
provides for trying of medical negligence cases before a consumer court or forum. It Is a vitalizing point
again, that since it has assumed a stature and that of a very high degree, it has become important. And to
the extent that a legislation was indeed enacted for the same. This Fact clearly shows that the legislature
has the intent and desire to improve the situation of tort law in India and codifying the law would be the
next logical step. The law on nuisance54 does provide for public nuisance and private nuisance.
50 Merriam Webster online resource The crime of trying or threatening to attack someone
physically
51 Black's Law Dictionary Garner, p. 162
52 State of Madhya Pradesh v Warren Anderson, 8460/19960
53 CONSUMER PROTECTION ACT, 1986, State legal service
authority<http://chdslsa.gov.in/right_menu/act/pdf/consumer.pdf>

54 The Pennsylvania State University, The Dickinson School of Law, Pennsylvania Nuisance
Law,<http://law.psu.edu/_file/aglaw/Pennsylvania_Nuisance_Law.pdf>
17

It has to be Continuous to bring up a claim. Private nuisance can be considered when there has been a
Substantial nuisance and unreasonable interference. Bringing on claims merely on ordinary Discomforts
would definitely be a futile litigation and it would overlook the practicalities of life. On this ground it
would be quite wrong to say that torts are being overlooked. It must be noted that the court, while
interpreting S.13355 of the CRPC has indeed allowed private claims as well. The court did say that the
language used by the said section does not necessarily mean public or Private nuisance. 56 Now, with
reference to nuisance, there has been a clear distinction via several cases between, Environmental
nuisance and tort nuisance. Now, nuisance has been given, a more criminal tilt to it. It is evident that the
remedy provided in the CRPC or the IPC, has been effectively exhausted. The classic example being, the
Ratlam Municipality Case57. When it comes to nuisance and as a Civil wrong (private nuisance to be
more specific), remedies available are scarce, and the injured Parties are often disinterested. The tort
litigation in India is nowhere as compared with that of the U.S.A or for that matter, the country which
has given India its uncodified tort law, Britain. There is a proper jury in certain cases of defamation in
England, while in India; it is not taken too seriously. Defamation 58has been made a criminal act too. The
system in England is quite different From India. They run on precedents. Thus it would be wise to cut
down the court fee to Appreciate more legislation, rather than giving much importance to the law of tort.
The development of tort law is evident in the law relating to nuisance as well. Principles, such as the
polluter pays principle are now being accepted through various judicial pronouncements in India. There
has been a wide acceptance of cases going to the Supreme Court via writ petitions or Public interest
litigations. This is a more effective and expeditious remedying available. How often it has been seen,

55 The Code Of Criminal Procedure, 1973 s(133)<Indian

kanoon ,http://indiankanoon.org/doc/983382/>

56 Merriam Webster online resource 2013, Private nuisance

57 Municipal Council, Ratlam vs. Vardichan And Ors [1980]
58 Asavari Singh Defamation laws: Its a question of honour The Indian Express [2008]

18

that the Supreme Court has admitted writ petitions under Article 32 59 of the Constitution of India. The
courts have awarded compensation in such cases as well. Thus, the Courts have tried to provide an
effective forum and method to the citizens. Problems used to be the prerogative of the State Pollution
Control Board. It was upon the Board to approach the court. The situation has changed now. The Courts
have recognized citizen suits in such matters too, thus opening a new way for the common Men to
approach the courts60. Another reason why the Supreme Court has become a remedy provider is that,
there are very few problems of locus standi61. Most of the cases have been dispensed off in a very tactful
and justifiable manner.

59 The Constitution Of India 1949, A32, Law ministry Government of India

<lawmin.nic.in/legislative/Art1-242%20(1-88).doc>

60 CONSUMER PROTECTION ACT, 1986, State legal service

authority<http://chdslsa.gov.in/right_menu/act/pdf/consumer.pdf>

61 Merriam Webster dictionary, locus standi- a right to appear in a court or before anybody on a
given question : a right to be heard, <http://www.merriam-webster.com/dictionary/locus
%20standi>

19

Taking about compensation, Section 357(1)62 of the CRPC permits a court, while sentencing an accused
to fine, to award compensation out of the fine to any person for loss or injury caused by the offence
when compensation is in the opinion of the court, recoverable by such person in a Civil suit. Further,
Section 357 (3)63 provides that a court can ask the accused (apart from the fine) to indemnify the victim,
by way of compensation. The point is that, the courts and the legal System does provide for alternative
remedies and a wide range of remedies. Then why is there a Need to give importance to tort, as a single
entity? There is also a provision for injunction in the Code of Civil Procedure as well as the Specific
Relief Act. An injunction is an order of a court restraining the commission, repetition, or Continuance of
a wrongful act of the defendant64.
An injunction may be granted to prevent waste, trespass, or the continuance of nuisance to dwelling or
business houses, to right of support, to Right of way, to highways, to ferries, to markets etc. Thus there is
a mechanism available to sort out or look in to trifles as well. These small torts can also be taken care of,
by the two Acts.

62 The Code of Criminal Procedure, 1973 (CrPc)

<vakilnol.comhttp://www.vakilno1.com/bareacts/crpc/the-code-of-criminal-procedure-1973-crpc2nd-page.html#357_Order_to_pay_compensation>

63 Satya Prakash, CRPC section opens doors for better compensation Hindustan Times (New Delhi, June
10, 2010)

64 Cambridge dictionary online

<http://dictionary.cambridge.org/dictionary/british/injunction>
20

Mentioned above. The Specific Relief Act65 also provides for restitution of property. Thus a person who
is wrongfully disposed of immovable property or of specific movable property is entitled to recover the
immovable or movable property, as the case may be. All these examples exhibit a Wide range of legal
issues and their remedies that are indeed available in the procedural (as well As substantive) laws of this
country. Now, coming to the law relating to defamation in India, there is a diversion from Britain. The
Common law rule that slander is not actionable per se has not been followed in India, except in a Few
decisions. The reason given is that the rule is not founded on any obvious reason or principle, and that it
is not consonant with justice, equity and good conscience. Both libel and Slender are criminal offences
under Sec. 49966 of the Indian Penal Code and both are actionable without proof of special damage.
Thus, there is an option available for defamation in India, to go for a civil remedy or a criminal one. This
again exemplifies the ease with which the judiciary has molded the different branches of tort law in to
the Indian legal system.

65 THE SPECIFIC RELIEF ACT, 1963 ACT NO. 47 OF 1963- Chandigarh district court
<http://chddistrictcourts.gov.in/THE%20SPECIFIC%20RELIEF%20ACT.pdf>

66 The Indian Penal Code, 1860 s (499)<http://www.indiankanoon.org/doc/1041742/ >

21

NEED FOR REFORMING AND CODIFYING TORT LAW IN INDIA

If ever there was a country with a compelling case for a comprehensive and detailed tort law it is India.
The lessons learnt from Bhopal have yet to be effected. The loss of lives caused by the incident is
catastrophic especially considering the crippling nature of the same that left generations diseased and
enfeebled. But what compounds this loss, in a most offensive and demeaning fashion is the
compensation awarded.
As a result of a system that lacked the expertise to face what would ultimately become the most complex
litigation of its kind, the Government passed the Processing of Claims Act67that invoked the Parens
Patriae doctrine68 to allow itself to represent the victims. This move itself was fraught with inadequacies
concerning victim profiling and an overtly simplistic gradation of victims. And the victims didnt receive
proper compensations. More so because Supreme Court had superficially determined the award of
compensation. This is validated in part by the fact that the scheme of compensation and the wisdom
behind the judgment had to be explained by the Government of India in an official statement. While this
disaster prompted a number of legislations, the law of torts was conspicuously ignored. As a result India
stands judicially unable to litigate major tort claims from large scale industrial accidents.
And even after such a catastrophe still people in India are not aware about their civil rights
infringements and still they are reluctant to go to courts for reasons prevailing due to lack of reform in
tort law in India like varying trial cost in civil suits in Indian courts ,the more high profile cases are
treated properly as opposed to low profile cases, limits on punitive damages which are generally very

67 Bhopal Gas leak Disaster(Registration and processing of claims)chemical [1985]

68 Cornell online dictionary, The power of the state to act as guardian for those who are
unable to care for themselves, such as children or disabled individuals. For example, under
this doctrine a judge may change custody, child support, or other rulings affecting a child's
well-being, regardless of what the parents may have agreed to
22

low in comparison with similar cases in other countries so in order to deal such problems there have to
be legislative reforms in order to codify and promote awareness about tort law in India.

SPECIAL CASE ANALYSIS

BHOPAL GAS TRAGEDY

The gas leak
Around midnight on Sunday, 2 December 1984, while most of India slept, a large number of the
residents of Bhopal, a town in the central Indian state of Madhya Pradesh with a population of nearly a
million, were put to death as methyl isocyanate (MIC), a toxic gas used in the Preparation of pesticides,
which had escaped from one of the tanks of a nearby Union Carbide plant, crept over them 69. The exact
number of people affected by this 'accident' remains unknown, but three years later the death toll stood,
on official count, at 3,500, though other estimates of People killed outright, or as a consequence of the
gas leak, run to as high as 10,000; perhaps as many as 40,000 people were permanently disabled,
maimed, or rendered subject to numerous grave illnesses, and another 200,000-300,000 found
themselves with minor injuries, without Jobs, or impoverished by the death of the only breadwinner in the family70. Cassels, a professor of law at the University of Victoria, recounts us for the
Tortuous path of litigation that eventually led, on 14 February 1989, to a settlement between the
Government of India and Union Carbide brokered by the Supreme Court 71, an agreement that Appeared
69 Manas history and politics,
<http://www.sscnet.ucla.edu/southasia/History/Current_Affairs/Bhopal_indepindia.html>
70 Ibid
71 See Bhopal, <http://www.ucaqld.com.au/community/bhopal>
23

to give the message "that human life in India is cheap" (p. 25). As he points out, news of the gas leak had
barely made its way into print before lawyers swung into action. Union Carbide, no doubt anticipating
litigation, forbids its employees from speaking to the press, and at Once retained prominent Indian
attorneys, including Nani Palkhivala, the former Indian Ambassador to the U.S. On December 7th,
the well-known American lawyer, Melvin Belli, characterizing himself as "a good capitalist", filed a
$15-billion class action suit in an American court on behalf of some victims, and two days later John
Coale, a Washington attorney, became the first American lawyer to arrive in India72. He got himself hired
as the city's lawyer after meeting with the mayor Bhopal, and immediately recruited local labor in order
to gain clients.
The scalps of Indians (the "other" Indians), American lawyers assiduously began to engage in bountyhunting. The "profit motive" had "brought to the doorsteps of the impoverished people of India some of
the finest legal talent in America", acknowledged one American observer (p. 115), as though to suggest
that the people of Bhopal, largely illiterate and poverty-stricken, should have felt honored indeed blessed
at the descent upon their city of a pack of wolves. 73
Survivors whose claims may have been wrongly dismissed or who were underpaid were directed by the
court to file a separate application, and seek compensation from the Government of India. The average
payout will still only amount to $570 per person which, despite Dow-Carbide's now Famous dictum that
$500 is plenty good for an Indian", comes nowhere near meeting the costs Of medical treatment that
survivors have already had to fund for themselves, much less compensating for two decades of
illness, loss of livelihood and fear for what new horrors may Emerge in their bodies.74
It is a further setback for the Dow-Carbide Corporation and its political accomplices in India, Who are
on record as demanding that this money, meant for the relief of the survivors, should be used to clean up
the company's abandoned and polluted factory in Bhopal. Last month, the Government of India threw its
weight behind a court action to force Dow-Carbide to bear the full Costs of cleaning the plant75

Justice delivery
72 NR Madhava Menon, Documents and Opinions on the Bhopal Gas leak Disaster, NLSIU (1991)
73 NR Madhava Menon, Documents and Opinions on the Bhopal Gas leak Disaster, NLSIU [1991]
74 The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985
24

First of all, the decision attracts severe criticism on one basis that is the ignorance of present
Circumstances and later effects of the accident. It is a principle of tort law that while considering The
harm done, all the injuries occurred which are direct result of the harm/act done or if there is a
reasonable nexus between the act done and the injury suffered, then the actual time of
Occurring the injury is immaterial. This is to point out here that no note has been taken of the
Harm which has furthered with the passage of time, or which has become even more intense and Worse
after a period of 25 years, and that is certainly a direct impact of the harm/injury suffered instantly after
the incident. Cases have been reported as in due to the gas-leakage, the persons suffered eye-injuries
resulting in short-sightedness, but the injury furthered during these years and ended up with the
total loss of the eye; total blindness. Therefore, such a later effect has not been considered.
Furthermore, the compensation has been provided, but on the basis of injuries suffered instantly after the
accident. But, this is what was not considered by the court while pronouncing decision and awarding
compensation. Hence, the damages so provided are not proportionate to the injury suffered and harm
occurred which is definitely a direct result of the act. 76
In order to get multinationals in the country and trade domestically and internationally, for the
furtherance of economic objective sought to be achieved by the Indian Govt., punishments have
been prescribed as less-severe as can be. This is to motivate the Companies enter Indian market and
continue trade in India. Ironically, to secure one of the Objectives, another has been brutally violated. 77
The grief stricken victims of Bhopal are outraged - how could the men responsible for the
Worlds greatest industrial disasters escape so lightly. They are genuinely shocked as many of them
did not understand the full implications of what India's Supreme Court did to them almost

75 In re Union Carbide Corp. Gas Plant Disaster at Bhopal India in Dec. [1984], 634 F. Supp. 842
(S.D.N.Y. 1986).

76 The Bhopal Case, Indian Law Institute (Bombay, 1990), Baxi, Upendra and Amita
Dhanda, Valiant Victims and Lethal Litigation.
77 NR Madhava Menon, Documents and Opinions on the Bhopal Gas leak Disaster, NLSIU
[1991]
25

fourteen years ago but it was mainly due to lack of punitive provisions in the Indian legal system that
the culprits were able to get away s easily and lightly after committing such a big wrong.78
Anyone with a basic knowledge of law could have known, as early as in 1996, that the scale of Justice
has been decisively tilted in favor of the accused due to lack of proper provisions to tortuous deeds.
In 1987, the CBI had charged 12 people with "culpable homicide" under Section 304-II of IPC 79, a
Charge carrying a ten-year jail term. In September 1996, a bench comprising Chief Justice AM Ahmedi
and Justice SB Majumdar quashed these charges and directed the CBI to dilute them to "Death by
negligence" under Section 304-A80 with a maximum of two years jail term. The dice was cast. The guilty
men of Bhopal had virtually won the legal battle in 1996 81. And now their tactics, backed up by some the
best legal brains in the country, was to prolong the fight for as long as Possible.
Initially nobody knew what had happened in Bhopal. Later the news filtered through, that 40 Tones of a
killer gas, methyl isocynate, had leaked from a poorly maintained tank in the Union Carbide plant.
Initial reports suggested that a disgruntled employee had intentionally done it by pushing a tap of
running water into the methyl isocynate tank. Obviously, this was one of the many false reports being
circulated to shift the blame away from company management.82
The final death toll reached up to 25,000 and hundreds of thousands continued to suffer from
Breathing and lungs ailments, birth deformities and physical and psychological trauma. 83

78 ibid
79 Baxi, Upendra and Amita Dhanda, Valiant Victims and Lethal Litigation. The Bhopal
Case, Indian Law Institute (Bombay, 1990).
80 See Bhopal, <http://www.ucaqld.com.au/community/bhopal>
81 Ibid
82 See Bhopal, <http://www.ucaqld.com.au/community/bhopal> (last visited August 27,
2007)
83 Madhava Menon, Documents and Opinions on the Bhopal Gas leak Disaster, NLSIU
[1991]
26

So it is known that that justice Ahmedi and Justice Majumdar did a great favor to Kasha
Mahindra and other Indian bosses of the UCIL, but it wasnt entirely their mistake it was a grave
mistake o n part of Indian legislation from which it hasnt learnt still and even today Indias judiciary
properly equipped with legal provisions to deal with industrial disaster cases like the Bhopal gas
tragedy.

UPHAAR CINEMA FIRE

The Uphaar cinema in Green Park was built in 1973. On June 13, 1997, it was showing the movie
Border, when a generator caught fire immediately after the intermission. The audience Noticed smoke
coming out from the side of the screen, but most people thought it was a "special Effect" device that was
part of the movie. By the time they realized that a fire had broken, it was too late. The majority of those
who were trapped inside the hall died in a stampede or as a result Of asphyxiation. Fifty-nine people,
who included infants and children, lost their lives and 103 Sustained injuries.84
The disaster shocked Delhi. The Association of Victims of Uphaar Tragedy (AVUT) 85was formed By 30
families whose members had been killed or injured. Said AVUT member Naveen Sahani: "We were
seething with anger. The association became something like a family, because I knew what was
happening inside the other persons mind, and he knew how I was suffering." Sahani Lost his daughter,
Tarika, at that time a 21-year-old final year degree student of Jesus and Mary College. According to
Sahani, an advertisement in a newspaper sparked off what evolved into a Movement. "Three or four
days after the incident, one of the accused took out an advertisement
Saying they were not responsible for the tragedy. This brought us together in outrage," he said. K.T.S.
Tulsi, the lawyer, fought the case for the victims without charging any fees. Members of the AVUT
attended the court hearings spread over 134 days. They organized discussions and Debates in Delhi on
issues ranging from environmental protection to governmental accountability in public affairs.

84Uphaar Tragedy ... vs. Union Of India (Uoi) Assn. Of Victims, [24 April, 2003], [2003]
IIIAD Delhi 321
85 Case study Uphaar Cinema the times of India
<http://timesofindia.indiatimes.com/articleshow/2142028440.cms>
27

On April 25, delivering its 192-page judgment, the Delhi High Court awarded a compensation of About
Rs.18 crores to the families of the dead and to the injured 86. (Licensing), the Municipal Corporation of
Delhi (MCD) and the Delhi Vidyut Board (DVB) guilty of giving short shrift to safety norms at the
cinema. The court said that the Ansals would bear 55 per cent of the total compensation amount while
the remaining 45 per cent would be shared equally by the DVB, the MCD and the DCP (Licensing) 87.
The court said: "It is our experience that the authorities including the licensing authority, the Delhi
Vidyut Board, the health authorities and the municipal authorities, adopt a casual approach in inspecting
the cinemas and other places visited by large numbers of people." 88
What caused the smoke to reach the balcony was the flouting of building by-laws by the Ansals by
raising what should have been a three-foot wall surrounding the generator to the ceiling level. The
ground-floor parking area was made an enclosed area with no provision to let out smoke from the
adjoining generator room. When the generator caught fire, burning oil from it came in contact with
parked cars. This led to the burning of at least 27 cars in the jam-packed parking area, which should not
have admitted more than 15 vehicles. Smoke from this area passed through the stairway into the hall and
into the balcony as there was no opening on the ground floor through which it could escape. 89
As there were no well-marked exits, members of the audience could not escape in time. Not only were
the gangways narrowed but the right-hand exit door was permanently locked. Emergency lights were
missing. Some of the exit doors were locked. Some people reached for the toilet windows. Most of those
who were asphyxiated died in the balcony foyer, the balcony and the toilets as they turned into virtual
gas chambers. 90
The Bench imposed punitive damages of Rs.2.5 crores on the Ansals for illegally adding extra
86 Uphaar Cinema Verdict A Breakthrough In Compensation Law Legal View, Laws in India
87 ibid
88 Assn. Of Victims Of Uphaar Tragedy ... vs. Union Of India (Uoi) 24 April, 2003, 2003 IIIAD
Delhi 321
89 Uphaar Cinema Verdict A Breakthrough In Compensation Law Legal View, Laws in India
90 Case study Uphaar Cinema the times of India
<http://timesofindia.indiatimes.com/articleshow/2142028440.cms>
28

Seats, for they had earned extra profits by selling tickets for these seats between 1979 and 1996.
By awarding deterrent compensation, the court set an example. It set a precedent also in terms of
The quantum of compensation awarded. In calculating the amount the court referred to an earlier
Case relating to mass deaths caused by fire - Lata Wadhwa vs. State of Bihar, Supreme Court
Case 197. This 1989 incident took place in a pandal erected by the Tatas for a meeting in
Jamshedpur to celebrate the 150th birthday of Jamshedji Tata, the founder of the group. The fire led to
the death of 60 people, which included 25 women and 26 children. Lata Wadhwa lost both her children a boy and a girl - and her parents in the fire. Her husband was an employee of the Company. In this case,
Chief Justice of India Y.V. Chandrachud determined the compensation Amount for the dependents of the
deceased as Rs.1, 19, 58,320. 91
The Delhi High Courts judgment is significant for two more reasons. First, it has widened the scope for
holding public authorities liable to pay exemplary damages. The MCD was pulled up for failing to take
timely action against illegal constructions. The DVB did not adhere to Prescribed standards in
maintaining the transformer, which was faulty. The 1000 KV Transformer installed in the parking area
had not been protected against over-load, earth fault and Excessive gas pressure. The sub-station was illmaintained. There were loose connections, damaged cable insulation and direct connection with lowtension switches. The cables were lying haphazardly on the floor of the sub-station and the trenches had
not been covered. 92
Despite several deviations from the approved arrangement inside the hall, the Delhi police granted the
owner the license to run it. The deviations included permanent closure of an exit door to make space for
43 additional seats and a reduction of the length of the gangway. There was no Fire-fighting equipment
in the hall. Punishing civic authorities for dereliction of duty is a rare occurrence 93. By its order, the
court added a new dimension to the law of torts. Secondly, the judgment has established equality before

91Uphaar Cinema Verdict A Breakthrough In Compensation Law Legal View, Laws in India
92 Ibid
93 Ibid
29

law for the public and private sectors. Said Tulsi: "I see it as a victory for the victims over a business
house and the government. The ordinary victims were able to take on the might of both." 94

Other famous cases:

I.
II.

K. Venkateshwarlu vs. Managing Director, Nagarjuna95

Kewal Chand Mimani(d) by Lrs. v S.K. Sen. and Ors96

III.

Bhim Singh v. State of Jammu and Kashmir97

IV.

Rudal Shah v. State of Bihar98

V.

Harikrishan and State of Haryana v. Suhbir99

94 Case study Uphaar Cinema the times of India

<http://timesofindia.indiatimes.com/articleshow/2142028440.cms>
95 K. Venkateshwarlu vs. Managing Director, Nagarjuna [16 December, 2005] I (2006) CPJ
47 NC
96 Kwela Chand Mimani(d) by Lrs. v S.K. Sen and Ors [2001] 3 SCR 1056.
97 Bhim Singh v. State of Jammu and Kashmir AIR [1986] SC 494
98 Rudal Shah v. State of Bihar AIR [1983] SC 1036
99Harikrishan and State of Haryana v. Suhbir AIR [1988] SC 2127, p.2131
30

CONCLUSION
The Tort law in India, has yet not been codified which makes it difficult for the plaintiff to recover the
damages. This is because he cant actually prove that the injurer is liable. So in most of the cases the
injurer escapes easily by saying that it was an unintentional negligence. This is actually one of the main
defenses used by big corporate houses and medical institutions for covering up torts such as negligence.
When we talk about certain laws regarding torts which are covered under different sections of CPC and
CrPC of the Indian Constitution, which may actually help the plaintiff recover damages, also cant help
because problems like high litigation cost of civil procedures, less punitive damages etc. The sole reason
being, that they have not been completely developed since they were first made and are not acquainted
with the present day situations which makes it easy for the injurer to find loopholes in the system and
get away easily. So, because of this we find many cases, where right verdicts were not delivered
because of these loopholes and one of the best, rather we should say the worst example of this is the
Bhopal Gas Tragedy inadequacies of our judicial system in dealing with incidents like these(namely
industrial disasters )

31

And Bhopal Gas Tragedy case actually proves in a very subtle manner that how weak, the tort law in
India is, where the two lakh didnt got justice even after 26 long years of the tragic incident. The
Indian courts could not make accountable Warren Anderson and make him pay for what happened in
Bhopal. This is one part of the Indian judicial system which makes it very weak. But this is not it there
have been many such cases.
But in some cases Indian judiciary has provided good decisions and has provided justice to people. Like
in the case of Uphaar cinema where the court sentenced both the injurers (Ansal brothers) to jail for an
year. Where the court actually gave good and strong message to the corporate that there is and there will
be the rule of law in this country and if for profit increment you play with the security of people, then
youll be behind bars.

So, I feel that the government should take some steps to tighten the tort law and codify it so that it may
increase the effectiveness of tort law in the country. Also, we know that tort law has strengthened and
developed a lot from the time it began in India. The Indian judiciary has also made some changes in the
tort law which we came across in this project. Although the tort law in India is underdeveloped in
comparison with other common law countries and it needs certain urgent reforms like codification, but,
it has made some appreciable progress and development in various sectors.

___________________________________________________________________________________

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