Jamia hamdard institute of legal

Studies and research (hilsr)

ACADEMIC SESSION: 2018-19

LAW OF TORTS
TOPIC: ‘DEVELOPMENT OF TORTS IN INDIA’

Submitted To: Submitted By:

Mohd Owais Farooqui Shahnawaz

(Convener, Moot Court Committee) B.A. LL.B.

2st Semester

Roll No: 12

Section: B
 ACKNOWLEDGEMENT

It feels great pleasure in submitting this research project to Mohd Owais Farooqui
without whose guidance this project would not have been completed successfully.

I would like to express my heartfelt gratitude towards my parents and friends who
guided me and helped me at every possible step.

SHAHNAWAZ

Roll. No. 12
 INTRODUCTION

Introduction to the Law of Torts

The word tort is of French origin and is equivalent of the English word wrong. It is derived
from the Latin word tortum, which means twisted or crooked. It implies conduct that is twisted
or crooked. Tort is commonly used to mean a breach of duty amounting to a civil wrong.

Salmond defines tort as a civil wrong for which the remedy is a common law action for
unliquidated damages and which is not exclusively the breach of a contract or the breach of a
trust or other merely equitable obligation.

A tort arises due to a person’s duty to others which is created by one law or the other. A person
who commits a tort is known as a tortfeaser, or a wrongdoer. Where they are more than one,
they are called joint tortfeaser. Their wrongdoing is called tortuous act and they are liable to
be sued jointly and severally.

The principle aim of the Law of tort is compensation for victims or their dependants. Grants of
exemplary damages in certain cases will show that deterrence of wrong doers is also another aim
of the law of tort.

Evolution of Law of Torts in India

The law of torts in India is mainly the English law of torts which is based on the principles of the
‘common law’. This was made suitable to the Indian conditions in accordance with the
principles of justice, equity and good conscience. However, the application of tort laws in India
is not a very regular event and one can even go to the extent of commenting that tort as a law in
India is far from being looked upon as a major branch of law and litigation. In the Indian legal
system, the concept of ‘punishment’ occupies a more prominent place than ‘compensation’ for
wrongs.

It has been argued that the development of law of tort in India need not be on the same lines as
in England.

It also deals with the malicious behavior of the people tort existed in Hindu and Muslim law but
it can be said that tort was formally introduced by the Crown in India. The application of the law
of tort is an applied selectively in Indian courts keeping in mind if it suits the circumstances of
Indian society.
In M.C. Mehta v. Union of India, Justice Bhagwati said, “we have to evolve new principles and
lay down new norms which will adequately deal with new problems which arise in a highly
industrialized economy. We cannot allow our judicial thinking to be constructed by reference to
the law as it prevails in England or for the matter of that in any foreign country. We are certainly
prepared to receive light from whatever source it comes but we have to build our own
jurisprudence.”

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. 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.

Objectives of Law of Torts

 to determine the rights between parties to dispute

 to protect certain rights recognized by law

 to prevent the continuation or repetition of a harm

 to restore the property to its rightful owner

Scope of Tort

Tort & Contract

1. In a contract, the parties fix the duties themselves whereas in torts, the law fixes the duty.

2. A contract stipulates that only the parties to the contract can sue and be sued on it (privity of
contract) while in tort, privity is not needed in order to sue or be sued.

3. In the case of contract, the duty is owed to a definite person(s) while in tort, the duty is owed
to the community at large i.e. duty in- rem.

4. In contract remedy may be in the form of liquidated or unliquidated damages whereas in

tort, remedies are always unliquidated.
Tort & Crime
1. In tort, the action is brought in the court by the injured party to obtain compensation
whereas in crime, proceedings are conducted by the state.

2. The aim of litigation in torts is to compensate the injured party while in crime; the offender is
punished by the state in the interest of the society.

3. A tort is an infringement of the civil rights belonging to individuals while a crime is a

breach of public rights and duties, which affect the whole community.

4. Parties involved in criminal cases are the Prosecution verses the Accused person while in
Torts, the parties are the Plaintiff versus the Defendant.

Foundations of Tortious Liability

Tortious liability arises from the breach of a duty primarily fixed by the law: such duty is
towards persons generally and its breach is compensated by an action for unliquidated damages.

• Theory 1: By Winfield – Law of Tort – General Liability: all injuries done to another
person are torts, unless there be some justification recognized by the law

• Theory 2: By Salmonds – Pigeon Theory – Law of Torts: there is a definite number of torts
(assault, battery, defamation) outside which liability in tort does not exist

Case Law:
Rougher, J., described in the case of John Munroe (Acrylics) Ltd. v. London Fire and
Civil Defence Authority, “It is truism to say that we live in the age of compensation. There
seems to be a growing belief that every misforture must, in pecuniary terms at any rate, be laid at
someone else’s door, and after every mishap, the cupped palms are outstretched for the solace of
monetary compensation.”

Tort law in India

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

VADODARA MUNICIPAL CORPORATION VS.

PURSHOTTAM V. MURJANI
1. In September 1992, the Vadodara Municipal Corporation [hereinafter
the
“Corporation”] entered into a license agreement with Ripple Aqua Sports
[hereinafter
the “Contractor”] for the management of the Boating Club at Sursagar Lake,
which
falls under its control and management.
2. The terms of the agreement were as follows:
2.1. The Contractor would be responsible for providing boating services to
the
public.
2.2. The Contractor would take insurance policies covering risk liability of
persons using club equipment.
2.3. The Corporation would retain right of supervision over the boating
club.
3. In consonance the agreement, the Contractor took an insurance policy
on 01.11.1992
through Oriental Insurance Company Ltd. [hereinafter the “Insurance
Company”].
4. On 11.08.1993, 38 passengers were allowed onto a boat having capacity
of 20 persons,
causing the same to capsize, and thereby resulted in the death of 22
person.

5. No life guards, lifesaving jackets or other safety measures has been

adopted or made
available, the presence of which may have positively affected the outcome
of the
incident.
 6. Subsequently, the victims approached the State Commission claiming
compensation
on the ground of deficiency of service by Contractor and Corporation.
7. The contentions of the parties before the State Commission have been
posited.

Contentions of Victims
7.1. The victims contended that the claim was covered by the insurance policy
to the extent of Rs. 20 lakhs per passenger to a maximum of Rs. 80 lakh in one
year.
7.2. The victims further relied on provisions of the Bombay Municipal
Corporation Act, 19491
to contend that the Corporation had a duty to maintain
the safety of the passengers and exercise due care. However, the Corporation
had failed and thus, was liable for the tortious acts of the Contractor.
7.3. The victims further relied upon the empirical absence of safety measures
to supplement their averment of the Corporation’s negligent act.
Contentions of the Insurance Company
7.4. The Insurance Company claimed that their liability was limited to Rs. 1
lakh per person and did not exceed Rs. 20 lakhs. It contended further, that the
complainants were not consumers and could avail remedy under the Indian
Vessels Act, 1917.

Conclusion

The law of torts in India is definitely not unnecessary but merely requires enactments to make it
more ascertainable. Failure of aggrieved persons to assert their legal rights is perhaps to be
ascribed not merely to insufficient appreciation of such rights but to other causes as well, e.g.,
difficulties in proving claims and obtaining trustworthy testimony, high court fees, delay of
courts. The elimination of difficulties which obstruct aggrieved parties in seeking or obtaining
remedies which the law provides for them is a matter which is worthy of consideration. If these
lacunae are removed, India could also witness a growth in tort litigation.