Sunteți pe pagina 1din 16

1. Who cannot sue and who cannot be sued under the law of torts. Discuss.

Explain briefly the persons


who are under the disability to sue and to be sued under the law of torts.
Ans Who cannot sue But the following persons cannot sue due to their personal disability :-
1. Alien Enemy 2. Convicts 3. Bankrupts 4.Husband and Wife 5. Corporation 5.Infant 6 Foreign State
Who cannot be sued :- the following persons cannot be sued in tort :-
1. Sovereign or the Crown 2. Indian Law :- Under the const. The president, governors and rajpramukhs of state
shall not be answerable to any court – The following are the rules regarding the liability of the Govt.
The Govt. is liable for the torts of its servants in the course of transactions which any private person can engage in.
The Govt.cannot be sued in respect of acts done by its servants in the exercise of its sovereign powers. 2. Foreign
Sovereigns 3. Ambassadors 4.Public Officials 5. Infants
1. The contracts cannot be converted into tort. 2.Tort cannot be converted into contract 3.Lunatics and Drunkards
4 Corporations – A corporation cannot be sued unless 1. the act was done within the scope of the agent, 2 the act was
done within the purpose of the incorporation.. But a corporation can sue and be sued for 1. defamation , 2. deceit, 3
malicious prosecution. 5 Trade Unions 6.Married Women

2. Define tort and explain its essential elements. Distinguish Tort from breach of contract and crime. If privity
necessary to support an action in tort. How is a tort different from other civil wrongs. Can the same act be a
tort, crime and breach of contract. Tortious liability arises from the breach of a duty primarily fixed by law.
This duty is towards persons generally and its breach is redressable by an action for unliquidated damages.
Explain this statement of Winfield. A tort is a species of civil injury or wrong. Examine this definition and add
other features to make it comprehensive.
Ans Literal meaning of the Tort :- The term tort is a the French tort. It is driven from the latin term tortum which
means a conduct which is twisted crooked or wrong causing injury to a person or persons. The persons who commit
tort is called a tortfeasor or wrongdoes and his misdoing is a tortuous act.
Main elements of tort 1.Tortious liability arises from the breach of a duty primarily fixed by law. 2. Such primary
duty is towards persons generally. 3.Such breach of primary duty is redressable by an action for unliquidated
damages. Factors defining the tort 1.There must be some act or omission on the part of the defendant independent of
contract.2. Such act or omission must not be authorised by law.3.There must be infringement of some legal right of
the plaintiff by such act or omission of the defendant. 4.Such act or omission must give rise to an action for damages
at the suit of the injured party. Essential of tort 1.A tort is a civil wrong 2. Such civil wrong is different from other
civil wrongs. 3. The remedy for such civil wrong lies in an action for unlquidated damages –

3. Volenti non fir injuria. Explain


Ans. It means willingness does not make injury or where the sufferer is willing no injury is done. In other words harm
suffered by consent is not a matter of cause of actions. Essential of Volenti non fit injuria :-1 Consent must be freely
given 2. Acts and methods of doing the acts must be lawful 3.knowledge of the risk is not the same thing as consent to
run the risk Exceptions to the above are 1.Consent to unlawful acts 2.Liability under statute 3.cases of rescuing 4.
Cases of negligence 5. Res ipsa loquitur :- essential three conditions to be fulfilled for the application of res ipsa
loquitur – 1. The event which caused the accident must have resulted within the control of the defendant 2. the mere
occurrence of the event must raise of itself a reasonable inference that the defendant or his servants or agents have
been negligent, 3 want of any explanation how the accident occurred by the defendents.

4 .State the circumstances in which the liability for torts is discharged.


Ans. Where there is a vested right of action for a tort, such a right of action may be discharged in the following seven
ways 1. Death of either party Exceptions under the English law (i) The law reform Act, 1934- (ii)The fatal accident
act, 1846 (iii) the employer’s liability act, 1883(iv) the workmen’s compensation act, 1925 Under the Indian law the
following are the exceptions (i) Legal representatives suits act 1855 (ii) fatal accidents act, 1855 (iii) Indian
succession act, 1925 (iv) Death of the wrong doer. 2. Waiver :Waiver may be either express or implied. 3.Accord
and satisfaction :- 4.Release 5.Acquiescence :- 6.Judgement recovered Exceptions :- 1. where tow or more rights
are violated a fresh suit can be filed for violation of each right. 2.Where damage is not the essence of the action.
3.where damage is the essence of the action a fresh cause of action arises as often damage arises. 4. Where the injury
is of continuing nature, the plaintiff may file a fresh suit for the continuance of the injury 7.Statute of Limitation
5. Enumerate those defences which apply generally through out the law of torts. There are various conditions
which in their absence would be a wrong. Discuss the general exceptions to the liability in torts in the light of
the above statement.
Ans.There are certain rules of immunity which limit the rules of liability. In other words there are certain conditions
which when present will prevent an act from being wrongful which in their presence would be a wrong. The general
exceptions to tortuous liability are as follows :-1.Act of state Thus, an act of state is an injury. (a) done against an
alien.(b) By a civil or military servant of the crown (c) Which act is either previously authorized or subsequently
ratified by the crown on state policy.(d) Which would otherwise , constitute a wrong but being done under the state
policy, is not cognizable by any municipal court.
Indian law –The act of state will not be available to the state under the following cases :-1. where the sovereign act is
towards its own subjects.2. where the act complained of is done under the sanction of Municipal law.3. Trespass to
immovable property.4. an obligation imposed by a statute.5.cases where it can be shown that some benefit has
resulted to the Govt. from the tort of its servants. 2.Judicial Acts 3.Quasi Judicial Acts 4. Executive Acts 5.Acts
done under parental or quasi parental authority 6. Authorities of necessity 7.Act of God 8. Acts authorized by statute
9. Leave and Licence 10.Inevitable accident 11Mistake of fact 12 Exercise of common right 13Private Defence 14.
Plaintiff a wrong doer 15.Acts causing slight harm

6. What do you understand by the doctrine of vicarious liability. Is such liability justified. How far a master is
liable for the tort committed by his servant. In what classes of cases and on what grounds may one persons sue
and be sued for a tort committed by another.
Ans. Vicarious liability :- It means the liability of one person for the torts committed by another. Under the law of
tort the general rule is that every person is responsible for his own acts. But there are circumstances where liability
attached to a person for the wrongs committed by others. How Vicarious liability arises – 1.Liability to Ratification
2. Liability by special relationship 3. Liability by abatement
Normally, the person who is liable for a wrong is he who does the wrong. But liability for another may arise where the
doer of the act and the persons sought to be held liable therefore are related to each other as 1. master and servant, 2
owner and independent contractor, 3 principal and agent, 4 company and its directors, 5 guardian and ward.
Principles on which vicarious liability is justified 1. He who does an act through another, is deemed in law to do it
himself. A person who puts another in his place to do a class of acts in his absence, necessarily leaves him to
determine according to the circumstances that arise when an act of that class is to be done. 2.Respondent superior –
The master is answerable for every such wrong of the servant or agent as is committed in the course of the service,
though no express command or privity of the master is proved. How far a master is liable to third person for torts
of his servant -According to salmond a wrongful act is said to be done “ in the course of employment if (i) it is
authorized by the master, (ii) is a wrongful and unauthorized mode of doing some act authorized by the master.
When is master liable :- 1. where the wrong is the natural consequence of the authorized act.2. where the wrong is
due to the servant’s negligence.3. The wrong may be due to excess or mistaken execution of a lawful authority.4. The
wrong may be a willful wrong 5.The wrong may be die to servant’s fraudulent act 6.The wrong may be due to
servant’s criminal act

8. What are the various kinds of damages available in tort action. How damages are assessed in India.

Kinds of damages – Pl. See q. 10

How damages are assessed in India :- Measure of damages means the footing upon which the quantum or amount of
damages to be awarded in a given case may be calculated. The law has not prescribed any arithmetical standard to
measure damages ina suit under the law of torts, nor can it possibly do so.
What is the basis of such compensation was a problem before the house of lords by way of damages and laid down the
following rules :- 1.The test to determine compensation is not the length of time of life of which a person has been
deprived. 2 .The test of happiness of life is not to be subjective. 3.Very moderate damages should be allowed for an
action under this lead. 4 .The economic and social position of deceased has to be ignored in assessing such damages.
9. Define defamation. What is meant by libel and slander. Distinguish between them. What defences are
available to the defendant in a suit for defamation. Explain the statement that the greater the truth the greater
the liable.
Ans. Defamation :- Every person has an absolute right to preserve his reputation. This right is
acknowledged as an inherent personal right of every person. It is a right in rem i.e right available against the
whole world. A man’s reputation is his property and if possible more valuable than any other property.
Types of defamation :-1. Libel :- A libel is a publication of false and defamatory statement, in some permanent form,
tending to injure the reputation of another person, without lawful justification or excuse. Essentials are 1. the
statement must be false, 2. it must be permanent form, 3 it must be defamatory
2. Slander – A slander is a false and defamatory verbal or oral statement in some transitory form, tending or injure
the reputation of another, without lawful justification or excuse. By reputation is meant the opinion of the world in
general. Essentials are :- 1. the matter complained of must be defamatory, 2 must be false, and must not be
privileged, 3 must refer to the plaintiff, 4 must be published, 5 must be published by the defendant, 6 must be special
damage to the plaintiff. Slander is actionable per se without proof of special damage to the plaintiff 1.Accusation
of criminal offence 2.Accusation of virulent disease 3.imputation against office, profession or trade.4 unchastity in
woman or gir 5Aspersion on caste.
Essentials of defamation :- 1.The statement must be defamatory 2. the statement must refer to the plaintiff 3.the
statement must be pubslished
Defences of defamation :-1 Justification by truth 2. fair and bona fide comment 3.privileged communications
Privileged occasions are of the following two kinds (a) Absolute privilege-privilege arise in the following four
kinds of proceedings –1. Parliamentary proceedings 2. Judicial proceedings 3.military and naval proceedings 4. state
proceedings (b) qualified privilege –1. statement made in performance of a duty 2.statement made in protection of
common interest 3 fair and accurate reports like – reports and judicial proceedings, extracts or abstracts form report of
parliamentary proceedings, fair reports of parliamentary proceedings, reports of quasi judicial proceedings
10 What is meant by contributory negligence and its last opportunity rule. Explain the doctrine of contributory
negligence is a factor in extinguishing tortuous liability.
Ans.Contributory negligence :- Contributory negligence means the negligence of the plaintiff is not avoiding the
consequence arising from the negligence of the defendant when means and opportunity are afforded to do so. It is the
non exercise by the plaintiff of such ordinary care, diligence and skill as would have avoided the consequence of the
defendant’s negligence.
The doctrine is based on the two maxim 1. volenti not fit injuria and 2. injure non remota causa sed proxima spectatur
1. where a man who keeps his hand outside the window of a railway coach or hangs perilously on foot bord knowing
the risk in either case, is only inviting the injury and cannot claim damages against the railway company.
2.where the plaintiff was crossing a railway line a servant of the railway company in charge of the crossing shouted a
warning to him . Owing to his deafness the plaintiff was unable to hear the warning, and was consequently injured. It
was held that this amounted to contributory negligence of the plaintiff.
Rules regarding the liability of contributory negligence :-
1. wherever the immediate proximate or decisive cause of the damage is the plaintiff’s own negligence o want of
care and caution so that but for such negligence or want or ordinary care and caution on his part.
2. The plaintiff however is not disentitled to recover unless it is shown 1. that one might by the exercise of
ordinary care have avoided the consequences of the defendant’s negligence or 2. that the defendant could not
avoid the consequences of the plaintiff’s negligence.
3. If there has been as much want of reasonable care on the plaintiff’s part as on the defendant ‘s the plaintiff
cannot sue the defendant.
Contributory negligence is no defence in the following cases –1.where rightful acts are assumed 2.where defendant
had later opportunity 3. Doctrine of alternative danger 4.Maritime law 5.Childern
11. Discuss the various remedies available in an action for tort.
The various remedies available to the plaintiff in an action for torts may be shown in a tabular as under
Remedies :-1) Judicial:- a) damages :- I) contemptuous , ii) nominal, iii) substantial, iv) exemplary, b) Injunction :-
I) Temporary, ii) perpetual iii) mandatory, iv) prohibitory, c) Specific restitution of property.
2. Extra judicial remedies :- 1 Self defence , 2. expulsion of trespass, 3. re-entry on land, 4. recaption of goods, 5.
abatement of nuisance, 6. distress damage feasant
12. Discuss fully the rule of absolute or strict liability. Explain the rule laid down in Rylands Vs. Fletcher. Are
there any exceptions to this rule. Discuss.
Ans. Absolute Liability :- There are certain cases in which the defendants are under the duties to secure safety. In
such cases even if there is no negligence or wrongful intention on the part of the defendant yet he is liable for
direct consequence of his acts. That is why it is called absolute liability. It may be defined as a duty, which
renders a man liable without any fault of his, irrespective of any consideration of intention or negligence on his
part.
The liability for breach of absolute duty to insure safety may arise with respect to – 1) cases relating to escape of
dangerous things 2.) cases relating to escape of animals 3) cases relating to the sue of things in their nature
specially dangerous . such as fire , loaded firearms , explosive, poisonous , drugs etc. 4) cases relating dangerous
premises 5)persons professing skill
Rylands Vs. Fletcher :- It is the most important case relating to the escape of dangerous things. After the decided
case it brings that if a person brings or accumulates on his land anything which, if it should escape , may cause
damage to his neighbours, he does so at his own risk. If it does escape and cause damage, he is responsible ,
however careful he may have been and whatever precautions he may have taken to prevent the damage.
Conditions for the application of strict liability :-b there should be an escape from the land of something likely to
do mischief if it escapes. 2) There should be non natural use of land
Indian law :- it has been held in several cases that the principle of Rylands Vs. Flethcher applies in India. Thus, when
the owner of the land had penned back the water of a stream by erecting a bund upon his land, so as to inundate
the land of his neighbour, without the latter’s permission it was held that the owner was liable.
Exceptions :-1) Vis major or Act of God. 2) Act of a stranger 3) Plaintiff’s own fault. 4) Common benefit 5)
Statutory authority
13. What do you understand by trespass. What are the defences open to the defendant in such action.
Ans. Trespass :- Trespass to land is an unwarrantable entry upon the land of another, or any direct and immediate act
of interference with the possession of such land. To constitute the wrong of trespass, neither force nor unlawful
intention nor actual damage nor breaking of any enclosure is necessary. Every invasion of private property, be it so
minute is a trespass.
Trespass to land is a continuing wrong which lasts so long as the injury to the land continues and gives rise to actions
so long as it lasts. How trespass is committed :- 1) Trespass by way of wrongful entry 2) Trespass by remaining on
the land 3)Trespass by placing things on the land
Essential conditions for trespass :-
1. That he was in actual possession of the land at the time of trespass; he must have effective possession , and
not mere user. It is immaterial whether his possession is rightful or wrongful
2. that there was direct interferences with the possession of his land, though there is no need to prove actual
damage, since trespass is actionable per se.
Plaintiff’s remedies :-1) He may bring an action against the wrong does. 2) he may forcibly defend his possession or
forcibly eject him 3) he may obtain an injunction to restrain a continuing or a threatened trespass.
Defences of trespass :- 1) prescription 2) Leave and licence 3) Authority of law:- a) Execution of legal process B)
distress c) distress damage feasant 4) Act of public necessity 5) Self defence 6)Re-entry on land 7) Re-taking of goods
and chattels (re-caption) 8)Abatement of nuisance 9)Special property or easement
Definition of trespass –ab-initio:- When a person enters upon the land of another by authority of law and is
subsequently guilty of an abuse of his authority by an act of misfeasance, his misconduct relates back, so as to make
his original entry tortuous, and he is liable in damages, not only for the entry itself but also for subsequent acts.
Essential conditions :-1) Authority must be given by law 2)Subsequent act must be a misfeasance

14. What do you understand by the malicious prosecution. Explain fully with the help of leading case provided
in your course.
Ans.Malicious Criminal prosecution :- malicious prosecution means the malicious institution against another of
unsuccessful criminal or bankruptcy or liquidation proceedings within reasonable or probable cause. It may also be
defined as the institution against an innocent person o unsuccessful criminal, bankruptcy or liquidation proceedings
without reasonable and probable cause and in a malicious spirit.
Essentials of malicious prosecution :- 1) That he was prosecuted by the defendant 2)That the proceedings
complained of terminated in plaintiff’s favour 3) that he was prosecuted without any reasonable and probable cause.
4) that he was prosecuted with the malicious intention. 5)That the plaintiff suffered damage
15. Explain the principle of nuisance. What are the defences open in an action based on nuisance. Define
nuisance. Is coming to nuisance a defence for the defendant. Illustrate your answer. What is public nuisance.
Can it be private also. Distinguish between public and private nuisance.
Ans. Nuisance :- The word nuisance is derived from the French word nuire and the latin word nocere meaning to do
hurt or to annoy. Nuisance has been defined to be anything done to the burt or annoyance of the lands, tenements or
hereditament of another, and not amounting to a trespass.
Characteristics :-1)It implies that one should use one’s property in such a way that no injury is done to another’s use
of property. 2) It is different from trespass because it is regarded an injury to some right accessory to possession but
not to prossession itself. Kinds of Nuisance - 1) Public Nuisance means an act or omission which cause any common
injury danger of annoyance to the public or to the people in general who dwell or occupy property in the vicinity.
2) Is coming to nuisance a defence for the defendant - Under the law of tort no defence is available to the defendant
that the plaintiff himself came to the nuisance. In fact, if the nuisance already exists in a particular place and the
plaintiff thereby suffered damage due to that the defendant cannot take the defence that the plaintiff himself came to
nuisance.
When can public nuisance become private nuisance : -Although public nuisance is an offence and no suit for
damages can be filed for it vet a public nuisance may become a private nuisance if the plaintiff satisfies the
following three conditions –1) special damage 2) Direct damage 3) Substantial
Private Nuisance :- A private nuisance is some unauthorized use of man’s own property, causing damage to the
property of another or some unauthorized interference with the property or proprietary rights of another, causing
damage, but not amounting to prespass. Private nuisance includes obstruction to light and air, wrongful escape of foul
gas, or noise water, filth, germs etc. Kinds of Pvt. Nuisance 1) Damage to Property :- In case of damage to property
, any sensible injury would be sufficient to support an action. In consideration whether an act is a nuisance , not only
the thing done, but also the surrounding circumstances, must be taken into account.2) Physical discomfort :- In case
of the physical discomfort, the act complained of must be (i) in excess of the natural and ordinary course of enjoyment
of the property and (ii) materially interfering with the ordinary comfort of human existence.
Defences of Nuisance 1) Grant 2) Prescription 3)Statutory authority

16. Write short notes on the following


Joint Tort feasors :- When several persons joint in committing a tort, they become joint tort feasors. There must be
some connection between the act of one alleged tort feasor and that of the other. There must be concurrence in the act
or acts causing damage, not merely a coincidence of separate acts which by their conjoined affect, cause damage.
Origin of Joint liability :- The liability of joint tort feasors is originated in three circumstances :-
1. Agency 2. Vicarious liability 3. Joint of common action
Nature of joint feasor’s liability- 1.The liability of wrong doers is a joint and several liability, so that each is
liable for the whole damage 2. a release of one of several tort-feasors releases all the others.3. the cause of
action as against the wrong doer being one and indivisible, a judgement obtained against one or more of the
wrong doers will be bar to a future action against the others, even through the judgement may not be
satisfied. Contribution between joint tort – feasors :- At common law there was no contribution among joint
tort-feasors and a tort feasro who was forced to pay the whole or more than a proportionate share of the
damages, had no claim against the other or others for their shares.
Mayhem :- Among the personal injuries not causing the death of the person, the most serious is “mayhem” or
“maim”. An action for this tort is maintainable when a person has been deprived of any fighting limb. Where it is not
a fighting limb which a person has been deprived of, then the action would not be for mayhem.
The only test of a mayhem is hurt on any part of a man’s body whereby he is rendered less able in fighting or
defending himself or in annoying his adversary.
Foreign torts:- A foreign tort means a tort which is committed abroad i.e. a tort the cause of action regarding which
has arisen abroad. Such a tort may be of two kinds :-
1 Torts to realty :- when a tort is committed with respect to immovable property in a foreign country, no suit can be
filed in England though the wrongdoer is a British subject resident in Britain.
2 Personal tort :- Where , however, the tort is committed with respect to movable property or against the person of the
plaintiff an action is maintainable.

Mental or Nervous Shock :- it means a shock to the moral or intellectual sense, by nervous shock mean a shock to
the nerve and brain structures of the body. The phrase nervous shock is generally used as a convenient caption for
discussing the cases on the subject, but the words nervous mental or emotional shock are now used interchangeably.
False imprisonment :- It means the total restraint of the liberty, for however short a time, without lawful
justification. Such a restraint may be either physical or by a mere so of authority.
In an action for false imprisonment , the plaintiff must prove the following two things
1.A complete deprivation of liberty:- In an action to succeed the plaintiff need not prove an actual imprisonment in the
sense of imprisonment in a jail. He must prove however that there is a complete deprivation of his liberty. Thus, no
action lies where the plaintiff is unlawfully prevented from going in a particular direction.
2.The detention must be unlawful :- It must detail the plaintiff unlawfully. It is detention is made in accordance with
the powers given by law to the defendant , then no action les.
Deceit :- Fraud or deceit means a false representation of a fact made with the knowledge of its falsehood, or without
belief in its truth, or a reckless statement whether it be true or false, with intent to induce a person to act in reliance
upon it, with the result the person acts on it and suffers damage. Essentials of Deceit :- 1.False representation
2. Knowledge of its falsity 3.plaintiff to act upon it 4.Damage to plaintiff
Remoteness of damage :- the damage suffered by the plaintiff must be the direct and natural cause of the defendant’s
act. the law will permit no damages to be recovered, except such as are the natural and legal consequences of a
wrongful act.
Damage is said to be too remote, when, although arising out of the cause of action, it does not immediately and
necessarily flow from it, or is such which could not have reasonably been foreseen. A man is not liable for all the
consequences of his wrongful act or default. Liability must be founded on the act which is the immediate or direct
cause of the harm.
Conspiracy :- it may be defined as when two or more persons without lawful justification , combine for the purpose
of willfully causing damage to the plaintiff, and actual damage results therefrom they commit the tort of conspiracy.
Essentials :-1. There must be a combination of two or more persons. 2.It must be without lawful justification 3.It
must be for the purpose of willfully causing damage to the plaintiff 4. Actual damage must result from such
combination

17 Define and distinguish between the following :-


Detention :- Detention is the adverse withholding of the goods of another. The remedy for this tort in English law is
an action in detinue. It lies for the specific recovery chattels wrongfully detained from the person entitled to their
possession, and also for the damages occasioned by the wrongful detainer.
Conversion :- Conversion is the wrongful taking or using or destroying of the goods, or an exercise of dominion over
them inconsistent with the title of the owner. Essentials :-1.by wrongfully taking a chattel 2.by wrongfully detaining a
chattel 3.by wrongfully disposing a chattel.
Dist. Between conversion and detention :- 1. As to their nature 2.As to their scope
Damage and Damages
Damage means the loss which the plaintiff has suffered on account of the wrongful act of the defendant. It may be a
loss of money, health, confort or service etc. Damages means on the other hand the compensation for the loss which
the court awards to the plaintiff on account of the wrongful act of the defendant.
Assault and Battery:-An assault is the unlawful laying of hands on another, or an attempt to do a corporal hurt to
another, coupled with present ability and intention to do the act. Thus, the essence of the wrong is putting a
man in present fear of violence , so that any act fitted to have that effect on a reasonable man would not be an
assault. But mere verbal threat is not assault , nor is a threat considering only of gestures, unless there is an
immediate intention and a person ability to carry it out. Essentials :-1.That there was some gesture or
preparation which constituted a threat of force 2.that the gesture or preparation was such as to cause a
reasonable apprehension of force 3.that there was a present ostensible ability on the defendant’s part to carry
out the threat into execution immediately.
Battery :- Battery I the actual striking of another person or touching him in rude angry in insolent manner. The
intentional application of force to the person of another without lawful justification , however trivial the amount
of nature of the force may be , constitutes the wrong of battery.Essentials of Battery :-1. The use of force to a
person , either to his body i.e. slapping or pushing or by bringing an object into contract with his body. 2. that
the use of force was intentional.

18. What are the two rival theories regarding the foundation of tortuous liabilities. Explain.
Ans. Regarding the foundation of the tortuous liability a question is generally asked as to whether there is any general
principles of liability in tort. The question is often posed in the form “is there a law of tort or only a law of torts”. Two
rival theories , one say there is general principle of liability as such but only a definite number of torts as trespass,
negligence, nuisance, defamation and so on and a plaintiff has no remedy unless he brings his case under one of the
nominate torts.
Salmond’s theory i.e the law of torts :- According to him “ just as criminal law consists of a body of rules
establishing specific injuries. Neither in the one case not in the other is there any general principle of liability.
Salmond is of the opinion that there was no English law of tort, there was merely law of torts i.e list of acts and
omissions which in certain conditions were actionable.
Salmond has supported his view by citation of several cases in which the plaintiff suffered manifest injury and yet
was unable to recover any damages in an action in tort cases in which there was damnum sine injuria.
Criticism :- 1. The case of damnum sine injuria cited by salmond do not really support his theory. It does not in the
least follow that, because all unjustifiable harm is tortuous, all harm is tortuous or that any one who has been harmed
by his neighbour can go into a law court with the confident expectation of being accorded a remedy. He will recover
nothing if he alleges a specific tort and fails to prove some essential ingredients in it i.e. if he sues for the tort of
negligence and cannot prove a duty to take care on the part of the defendant.
2.While there is some force for Dr. jenk’s criticism it seems to be scarcely consistent with facts. It is not really true
that all the new torts known to us are substantially similar to torts which were already in existence.
3.The common law has not proved powerless to attach new liabilities and creates new duties where experience has
proved that it is desirable. There is a cause action at common law whether there is negligence causing damage in
circumstance in which a duty is owed to plaintiff to take care & it is for courts to say when there is a duty to take care.
Winfield’s theory A law of tort :- Winfield is the chief exponent of this theory. He says all injuries done to another
person are torts, unless there is some justification recognized by law. This according to this theory tort consists nor
merely of all those torts which have acquired specific names but also includes the wider principles that all
unjusticiable harm is tortuous.
This theory has been supported by the dicta of some eminent judges both anciem and modern. It is however,
reinforced by the fact that the courts have repeatedly extended the domain of tort by creating a new torts i.e. torts to
which specified names have been given. This creation of new nominate torts is exactly what one would expect if the
principle that “ all unjustifiable farm is tortuous” is correct.
19.Define Negligence. What are its essential elements which the plaintiff must prove in order to recover
damages from the defendant.
Ans. Negligence :- It means the want of proper care and carelessness. The various jurists defined negligence as under
1. Dr. Under hill : Negligence consists in the omission to do something or he doing of something which a prudent man
would not do and is actionable whenever as between the plaintiff and defendant, there is a duty cast upon the latter no
to be negligent and a breach of this duty which causes damage to the plaintiff.
According to circumstances here means that a particular act may or may not by negligent depends wholly according to
circumstances. In other words it is not the act that gives the idea of negligence but the negligence is to be determined
under what circumstances that particular act is committed.
Essentials :-In case of negligence a plaintiff must prove the following 4 elements—1.That the defendant was under a
legal duty to take care 2. that the duty was towards plaintiff 3.that the defendant was guilty of the breach
of that duty 4.that the plaintiff suffered damage.
What defences are available to the defendant in case of negligence.
In case of negligence the defendant can take the following defences :- 1. Contributory Negligence 2.Act of God or vis
major :- According to Sir Fredric Pollock :- Act of God is an operation of natural forces so unexpected that no human
foresight or skill could reasonably be expected to anticipate it.
Thus act of god includes those consequences which are occasionally the elementary force of nature unconnected with
the agency of man. Essentials of Act of God :-1.That event causing damage was the result of natural forces without
any intervention from human agency 2. that event was such that the possibility of such an event could not be
recognized by using reasonable care and foresight.
Whether a particular event amounts to an act of god or not is a question of fact. Now a days the scope of this defence
is very limited because with the increase of knowledge the foresight also increases and it is expected that the
possibility of the event could have been visualized.

Consumer Protection Act, 1986


20. What are the special features of the consumer protection act, 1986. Write an essay on the general
introduction of the consumer protection act, 1986.
Ans Features of consumer protection act :- 1.Short title, extent and commencement of the Act – according to S.
1(1) of this act may be called the consumer protection act 1986. it extends to the whole of India except the state of
Jammu and Kashmir. IT shall come into force on such date as the central government may, by notification, appoint
and different dates may be appointed for different states and for different provisions of the act. Thus, it is clear that
this act could not be enforced on a single date in the entire country as different dates appointed by different states and
for different provisions. 2.Objects and reasons of the act – 1. The consumer protection bill seeks to provide for
better protection of the interest of the consumers and for that purpose, to make provisions for the establishment of
consumer disputes and for matters connected therewith. 3.it seeks inter alia to promote and protect the rights of the
consumers a to be informed about the quality, quantity, potency, purity, standard and price of the goods. (i) to be
assured wherever possible access to variety of goods at competitive prices (ii)to be heard and to be assured that
consumers interests will receive due consideration at appropriate.(iii) the right to seek redressal against unfair trade
practices or unscrupulous exploitation of consumers(iv) right to consumer education 5.These objects are sought to be
promoted and protected by the consumer protection councils to be established at the central and state. 6.To provide
steady and simple redressal to consumer disputes a quasi judicial machinery is sought to be set up at the district, state
and central levels.
The bills seek to achieve the above objects.1. Subject matter of the act :- It provides for compensating the
consumers who have been given the following right under the act –
1.Right to be protected against commerce of such goods which are dangerous to health, life or to property.
2. Right to be informed about the quality, quantity, capacity, purity, standard 3.right to availability of varieties of
goods under trade competition 4.right to be heard and of assurance that interests of the consumers will be considered
at different portfolios 5. right to damages against unfair trade practices 6.right to consumer education 7.Act not in
derogation of any other law 8. establishment of consumer dispute redressal agencies 9.Consumer :- Ans 20 10.
Consumer dispute – Ans 20 11 Who can make a complaint before a consumer forum Ans 23 12 What may be said to
be a complaint – And 20 13
Where complaint is to be filed :- A complaint may be filed before the district forum if the goods purchase or the
service hired is valued not more than Rs. 5.00 lac. To the state commission if the valuation of such goods or service is
not more than Rs. 20.00 lac. 14 How to file a complaint :- A complaint should be made in writing giving complete
particulars thereof. No court fees is to be paid on the complaint. It may be filed in person or may be sent by post or
may be presented by his agent or counsel. Four copies plus number of copies as there are opposite parties of the
complaint are to be filled in district forum, on in state commission, six copies plus number of copies as there are
opposite are to be filled or sent to the national commission. 15. Form of Complaint :- Generally no form of complaint
is prescribed . However, a complaint should give the following informations :-
A Name of the complainant B name of the opposite parties, addresses with their designations C facts relating to the
complaint, when the cause of action arose and what are the grounds or causes of compliant D docs in support of the
complaint E affidavit in support of the complaint F the complaint should be signed by the maker of the complaint or
his agent duly authorized by him
16. What relief can be granted to a complainant :- 1.To remove defects pointed out by he appropriate laboratory
2.to replace the goods with new goods 3. to return to the complainant the price 4.to pay compensation as may be
decided by the forum to the complainant 5. to remove the defects of deficiencies in the services of question 6.to
discontinue the unfair trade practices 7. not to offer hazardous goods for sale 8.to withdraw hazardous goods from
being offered for sale 9.to provide for adequate cost to the parties.
17. Procedure to file appeal – Appeal may be filed against the order of the district forum to the state commission and
from an order of the state commission on a complaint to the national forum. Limitation for filing appeal is 30 days
from the order’s date. No court fee is payable on memorandum of appeal in the form as prescribed if any. An appeal
against order of the national commission on a complaint may be filed in the supreme court of India. In supreme court
Rs. 250/- shall be paid as court fees on the memorandum of appeal.
18.Limitation for filing complaint :- Limitation for filing complaint before a forum is two years from the date of
occurrence or arising of cause of action, or as provided by the Limitations act, 1963

20.Write notes on the following :-


Ans 1.Consumer :- It means any person who A buys any goods for a consideration which has been paid or promised
or partly paid and partly promised or under any system of deferred payment and includes any user of such
goods other than the persons who buys such goods for consideration pair o promised or partly paid and
partly promised or under the system of deferred payment
Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised
or under any system of deferred payment and includes any beneficiary of such services other than the person who
hires or avails of the service for consideration paid or promised
The word consumer acts in two parts :- 1. The first part declares the meaning of the goods and services by use of wide
expressions. The act applies to all goods and services save as otherwise expressly provided by the central government
by notification. 2.Association of persons when a consumer :- An association of persons to have locus standi as a
consumer it is necessary that all the individual person forming the association must be consumers , that they must
have purchased the same goods or service for consideration, they must have purchased the same goods or hired the
same services from the same party.
It may be noted that in the case of unregistered association all members or persons thereof must have a common
interest. They must file a compliant jointly or through any one of them.
Complainant when not a consumer :-
Where the complainant has admitted that he had not paid anything either to the agent or the Indian oil corporation ,
while registering for LPG connection. Held that by merely registering he will not be a consumer.
Where the complainant gave a thekha for construction of his house, on a plot of land to the opposite party who did not
construct the same as per agreement. Held that the complainant was not a consumer, hence could not validly file
complaint before the forum.
A tax payer is not a consumer.
1. Complaint :- According to S. 2 (1) © complaint means allegation in writing made by a complainant that
1. an unfair trade practice or a restrictive trade practice has been adopted by the trader
2. the goods bought by him or agreed to be brought by him suffer from one or more defects.
3. the service hired or availed of or agreed to be hired or availed of by him, suffer from deficiency in any
respect.
4. a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under
any law for the time being in force or displayed on the goods or any package containing such goods
5. Goods which will be hazardous to life and safety when used are being obtained for sale to the public in
contravention of the provisions of any law for the time being in force
When complaints are entertainable :- Complaint against the insurance company :- where the insurers have not applied
their mind in considering the claim, there is deficiency to this extent in service for which the complainant would be
entitled to compensation.
Where the insurance company delayed in settling claim on lame excuses, the insured is entitled to compensation for
business loss caused by such delay.
Where the allegations in the complaint precisely relate to the rejection of the complainant’s claim on unjustifiable,
frivolous and malicious grounds, whereas the admitted facts are that the complainant’s tin box containing cut and
polished stones was insured by the opposite party to cover the risk of theft and pilferage during transit; however, the
complaint lodged by the complainant to settle the claim arising out of the policy of insurance on the allegations of
pilferage has been rejected by the opposite party. Held that the opposite party was bound to settle the claim in terms of
the insurance policy.
When complaints are not entertainable :- 1.Compliant filed on behalf of unspecified number of persons 2.When no
deficiency in service of opposite party is made out 3. When there is no fixation of price under any law
4.When issues can be more conveniently decided by the civil court 5.Total repudiation of liability by
insurer 6.Where civil suit us filed for similar reliefs 7.Simpliciter sale of goods 8.When the matter is
subjudice
2.Service :- It means service of any description which is made available to potential users and includes he provision s
of facilities in connections with banking, financing transport, proceeding, supply of electrical or other energy , board
or loading or both housing, construction , entertainment , amusement or the purveying of news or other information ,
but does not include the rendering of any service free of charge or under a contract of personal service.
It covers railway service, educational service, activities of housing board.

What is not included in service :- Advocate’s service, when service suffers from deficiency , deficiency in airlines
service, deficiency in service of a bank, deficiency in medical professional’s service, deficiency in service of local
authority or government, Deficiency in insurance company’s service, deficiency in services of a teacher, bank-
guarantee in s service.

Deficiency :- It means any fault, imperfection , shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any services.
What amounts to deficiency :- 1. when the consignment did not reach its destination and was misplaced or lost in
transit , it would amount to deficiency in service.
1. when a transport company failed to lawfully discharge its obligations under the contract of carriage, the
complainant must have been put to very serious prejudice and loss in relation to his business.
2.There was a receipt dated 05.01.1988 showing the payment to the press trust of India which shoed that the
complainant was a hirer of services of the opposite party. Held that even though there was no written agreement
between the parties the opposite party was regularly supplying the news items to the complainant.
1. Where the precise complaint of the complainant was that there was overcharging the passenger fare than the
published and in the process. It was alleged to be grossly unfair to the traveling public.
2. For the delay in handling over possession after two years from the date the initial deposit made by the
potential consumer of housing boat or a builder. Held that in this case the date in relation to the above
statement would be 30.11.94 thought the estimated date of completion was 30.06.84.
3. where the package was entrusted to the opposite party on behalf of the complainant by hr mother and if the
package had not been delivered to the addressee.
4. where the complainant purchased a television set of oskar brand, its guarantee period expired on 17.03.91, the
complaint was lodged on 17.03.90 within the validity of the guarantee period.
5. in claim for damages against an insurance company, it was contended by the insurance company that the
damage was caused in an accident.
6. any person who obtains an insurance policy from an insurance company is a potential user of the service of
the company on payment of premium therefore.
5.Consumer dispute :- Consumer dispute means where a person against whom a complaint has been made denies or
disputes the allegations contained in the complaint.
Example – 1.Where the complainant purchased a jeep in an auction which was stated to be diesel, where as it was
petrol engine and its engine number did not tally with the number of engine given in the registration book. It
amounted to sale of defective goods and raised a consumer dispute. 2.A food processor machine purchased by the
complainant was required to be repaired several times during warrant period, it could be said having inherent defects
and a consumer dispute was validly raised.
What I not a consumer dispute :-
1.Where the grievance of the complainant pertains to alleged failure on the part of the state bank of India and u.p.
state financial corporation to grant financial assitance to the complainant for nursing and rehabilitating a sick
industrial unit of his.
2.where the relationship between the company and the bank was that of a pledger and the pledgee and there was
hypothecation of the goods.
3.A dispute regarding pricing of a flat by housing board society or a builder is not a consumer dispute.
4.where the case could not be brought under the category of deficiency in service and the complainant had filed his
complaint for recovery of the amount alleging breach of the contract by the opposite parties which was disputed by
the opposite parties.
6.Trader :- Trader in relation to any goods means a person who sells or distribute any goods for sale and includes the
manufacture thereof, and where such goods are sold or distributed in package form, includes packer thereof.
Who is trader :- it is a person who sells or distributes any goods for sale is a trader and includes the manufacturer
thereof. A person who sells the goods is a trader and it includes manufacturer. A dealer is not responsible for any
manufacturing defect. Where the manufacturer had given the warranty to the purchaser in the usual form which was
for a period of one year. The liability of replacing of the picture tube for which there was not justification, the
manufacturer is liable to replace the color tube of t.v.

Unfair Trade Practice :- Unfair trade practice means a trade practice which, for the purpose of promoting the sale,
use or supply of any goods or for the provisions of any service adopts any unfair method or unfair or deceptive
practice including any on the following
1.The practices of making any statement, whether orally or in writing or by visible representation which
(i) falsely represents that the goods are of particular standards (ii) falsely represents that the services are of a particular
standard (iii) falsely represents any re-built second hand reconditioned or old goods as new goods (iv) represents that
the goods or services have sponsorship , approval, performance, characteristics, accessories, uses or benefits which
such goods or services do not have (v)represents that the seller or the supplier has a sponsorship an approval or
affiliation which such seller or supplier does not have (vi) make a false or misleading representation concerning the
need for , or the usefulness of , any goods or services (vii) gives to the public any warranty or guarantee of the
performance , efficacy or length of life of a product or of any goods that is not based on an adequate or proper test
thereof.
Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper
test the burden of proof of such defence shall lie on the person raising such defence.
a) materially misleads the public concerning the price at which a product or like products or goods or services have
been or are ordinarily sold or provided and for this purpose a representation as to price shall be deemed to refer to the
price at which the product or goods a services have been sold by sellers or provided by suppliers generally in the
relevant market. b) Gives false or misleading facts charging the goods services or trade of another person.
1. Permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at
bargain price, of goods or service that are not intended to be offered for sale or supply at the bargain price or
for a period that is and in qualities that are reasonable, having regard to the nature of the market in which the
business is carried on, the nature and size of business and the nature of the advertisement.
2. Permits :- the offering of gifts prizes or other items with the intention of not providing them as offered or
creating impression that something is being given or offered free of charge when it is fully or partly covered
by the amount charged in the transaction as a whole.
3. permits the sale or supply of goods intended to be used or are of a kind likely to be used by consumers
knowing or having reason to believe that the goods do not comply with the standards prescribed by competent
authority relating to performance composition, contents , design
4. permits the hoarding or destruction of goods or refuses to sell the goods or to make them available for sale or
to provide any service, if such hoarding or destruction or refusal raises.
21.Explain the constitution, procedure of functioning , aims and objects of Central and State consumer
protection councils.
Ans Since the main object of the consumer protection act, 1986 is for the better protection of the interests of the
consumer and for that purpose to make provisions for the establishment of consumer councils and other authorities for
the settlement of the consumers disputes and for the matter connected therewith.
Establishment of the central consumer council :- the central govt may be notification establish with effect from
such date as it may specify in such notification a council to be known as the central consumer protection council. It
consists of 1. the minister in charge of consumer affairs, 2 such number of other official or non official members
representing such interest may be prescribed
Procedure :- 1. The central council shall meet as and when necessary but atleast one meeting of the council shall be
held every year, 2 the central council shall meet at such time and place as the chairman may think fit.
Objects :- 1.right to be protected against marketing of goods and services which are hazardous to life and property.
2.the right to be informed about the quality, quantity, potency, purity standard and price of goods and services as
the case may be 3.the right to be assured wherever possible access to a variety of goods and services 4.the right
to be heard and to be assured that consumer interest will receive due consideration at appropriate forums 5.the
right to seek redressal against unfair trade practice or restrictive trade practices.
State consumer protection councils :- The state govt may be notification establish with effect from such date as it
may specify in such notification a council to be known as the consumer protection council
It consists of 1. the minister in charge of consumer affairs in the state govt who shall be its chairman2 such number of
other official or non-official members representing such interests as may be prescribed by the state govt.
Procedure of function :- the state council shall meet as and when necessary but not less than two meetings to be held
every year.
Objects :- the objects of these councils shall be to promote and protect within state the rights of the consumers.

22.What is the objects of the establishment of consumer disputes redressal agencies. Explain the provisions
relating to the constitution and different jurisdictions of district forum. Is it entitled to decide a dispute
relating to a mater already pending before a civil court.
Ans. Objects of the establishment of consumer disputes redressal agencies :- The object of consumer protection act is
to create a three tier consumer disputes redressal agencies for the purpose of speedy and inexpensive grievance
redressal of a consumer by way of an alternative machinery thus to abstain from the ordinary process of the civil court
where the litigation is likely to cause delay and heavy cost upon a consumer.
Procedure -The act provides for selection and composition of selection committee for appointment of
president, member of the district forum. President and two members must be made by the state
government only on recommendation of the duly constituted selection committee under the act.
The selection committee shall consists of 1.Chairman 2.member- secretary, law department of the state 3.member :-
secretary of the department of consumer affairs in the state
District Forum :- Every member of the Dist. Forum shall hold office for a term of 5 years or up to the age of 65
years, whichever is earlier.
Jurisdiction :- 1. pecuniary jurisdiction 2 territorial jurisdiction
The complaint can also be instituted to the district forum within the local limits of whose jurisdiction the ‘cause of
action’ wholly or in part arises.
On the basis of the several decisions given in the various cases by national commission it can be said that the district
forum has no jurisdiction to hear cases already pending before civil courts.
23.a Explain the manner of filing complaint before district forum. Who can file a complaint. Whether a
complaint can be filed by an advocate. Explain referring to a judgement.
Ans It provides that who are the persons competent to institute complaint before consumer redressal forums and also
which complaint against who a complaint can be filed. Therefore a complaint relating to any goods sold or delivered
or agreed to be sold or delivered or any service hired or agreed may be filed with a district forum :- 1.a person who is
a consumer 2. any recognized consumer association 3.one or more consumer having common interest 4 the central or
the state government
A registered consumer association can validly lodge complaint against milk diary against price increase and stoppage
of supply of one type of milk.
23b. Describe briefly the procedure adopted by a district forum on receipt of a complaint.
Ans. It relates to the goods of two kinds :- 1.the goods in which defect can be determined without proper analysis
2.the goods in which defect cannot be determined without proper analysis by the appropriate laboratory
Procedure –(1)refer a copy of the complaint to the opposite party giving him 30 days time or period not exceeding
15 days as may be granted by the forum (2) where the opposite party on receipt of a complaint referred to him
denies or disputes the allegations contained in the complaint or omits or fails to take any action to represent his
case within the time.(3) where the complaint alleges a defect in the goods ,which cannot be determined without
proper analysis or test of goods, the dist. Forum shall obtain a sample of the goods from the complainant, seal it
and authenticate it in the manner prescribed (4)before any sample of the goods is referred to any appropriate
laboratory , the dist. Forum may require the complainant to deposit to the credit of the forum such fees as may
be specified.(5) the dist. Forum shall remit the amount deposited to its credit to enable it to carry out analysis or
test mentioned on the receipt of the report from the appropriate laboratory.(6)the dist. Forum shall thereafter
give a reasonable opportunity to the complainant as well as the opposite party of being heard as to the
correctness or otherwise of the report made by the appropriate laboratory.
The dist. Forum shall, if the complaint received by relates to goods in respect of which the procedure cannot be
followed, or if the complaint relates to any services --1.refer a copy of such complaint to the opposite party directing
him to give his version of the case within a period of 3 days 2. where the opposite party on receipt of a copy of the
complaint , referred to him denies or dispute the allegations contained in the complaint or omits or fails to take any
action to represent 3 no proceedings complying with the procedure laid down in the law shall be called in question in
any court on the ground that the principles of natural justice have not been complied with
1.For the purposes of this section the dist. Forum shall have the same powers as are vested in a civil court under the
code of civil procedure while trying a suit in respect of the following --
(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness as evidence
(ii) the discovery and production of any document or other material object(iii) the reception of evidence on affidavits
(iv) the requisitioning of the report of the concerned analysis (v) issuing of any commission for the examination of
any witness (vi) any other matter which may be prescribed.
2. Every proceedings before the district forum shall be deemed to be judicial proceedings. 3.where the
complainant is a consumer
24 (a) Explain the provisions relating to appeals against the orders of the district forum. Can the state
commission may entertain an appeal ever after the expiry of the statutory period of 30 days.
Ans. Section 15 provides that any person aggrieved by an order made by the district forum may prefer an appeal
against such order to the state commission within a period of 30 days from the date of the order, in such form and
manner as prescribed.
It also provides that right of appeal before the state commission by any person aggrieved by order made by the dist.
Forum within a period of 30 days from the date of the order passed by the dist, forum in prescribed manner
1.No appeal lies lies against an interlocutory order :- Where an appeal was filed against an order of the district
forum passed on the point of limitation, it was held that no appeal can be filed against an interlocutory order
2.limitation on appeals :- date of communication of order is the date wherefrom limitation starts where one of the
contentions raised by the respondent in opposition to the appeal was that the memorandum of appeal was not filed
within 30 days of passing of the order
24b. What relief can be granted by the district forum in a complaint. Whether the district forum pass
an order granting interest and costs. When compensation is payable.
Ans. What relief can be granted by district forum :- after the proceedings has taken place u/s 13 of the consumer
protection act before the district forum and on the basis of the evidence the district forum is satisfied that the goods
complained suffer from any of the defects mentioned specifically in the complaint or any of the allegations contained
in the complaint about the services are proved.
According to section 14(1) the district forum may provide relief to a consumer by one or more of the following ways -
1. the opposite party may be directed to remove the defects pointed out by the appropriate laboratory 2.replacement of
goods of similar description 3. return of sum paid by the complainant 4.award compensation to the consumer for any
loss due to negligence of the other party 5.removal of the defects or deficiency in the services in question 6.make
order to discontinue the unfair trade practice 7.withdrawal of hazardous goods from being offered for sale 8.impose
prohibition on sale of the goods which is hazardous 9.may award adequate cost to the parties
When compensation is payable :- 1.suspension of water supply 2.telephone delay in shifting 3.telephone bills delay
condonation 4.accident of bus fatal injuries 5.allotment of shares – delay compensation against liquidated damages
25. Explain the constitution and jurisdiction of the state commission. Can state commission transfer
the cases from one district forum to another district forum.
Ans. Composition of State Commission :- 1.President 2 Two members :- One member shall be a woman who shall
be persons of integrity, ability and having adequate expertised knowledge and experience and also proved capacity in
dealing with problems.
Selection committee consists of 1. Chairman 2 Members
Appointment of the president of the state commission :- According to S. 16 the president of the state
commission to be appointed after consultation with the chief justice of the high court which is similar to
provision of the const. of India.
Security of Tenure :- The legislature with the object to achieve fairness and inject sense of security of tenure in
members provided that every members of the state commission will remain in office for a definite term of 5 years or
upto the age of 67 yrs whichever is earlier.
Jurisdiction of the state commission :- 1) Pecuniary 2) appellate 3) territorial 4)revisional
26. Where an appeal can be filed against the orders of the state commission. Whether any limitation has been
prescribed for filing appeals. Can the National Commission entertain an appeal after the expiry of 30 days.
Ans Appeals against the order of the state commission :- Any person aggrieved by an order made by the state
commission in the exercise of its powers conferred , an appeal against such order to the national commission within a
period of thirty 30 days from the date of the order in such form and manner as may be prescribed .
Right of appeal to any person who is an aggrieved by an order made by the state commission to prefer an appeal to the
national commission within a period of 30 days from the date of the order.
Limitation :- 30 Days
Can the appeal be entertain after a period of 30 days :- Limitation of period provided that under this section may be
exempted if the national commission is satisfied that there was sufficient cause for not filing an appeal within that
period. Thus, an appeal can be entertained by the national commission against the order made by the state commission
ever after the expiry of period of 30 days from the date of the order passed by the state commission.
27. Explain the provisions relating to composition of national commission and its various jurisdictions.
Ans. It provides the composition of the national commission , however certain changes have been inserted. Under this
section the national commission will be constituted on the recommendations made by duly constituted Selection
Committee namely 1) Chairman 2) President
Now after the amendment act 1993 in respect of appointment of the president which provides that no appointment
shall be made except after consultation with the chief justice of India.
Four members :- Among four members one of the member shall be woman.
Jurisdiction of the National Commission :-
The National Commission has the following three kinds of jurisdiction – 1 Pecuniary Jurisdiction 2 Territorial
3 Revisional
Jurisdiction of the national commission in case a matter is sub judice :-
The national commission has no vested jurisdiction to entertain the same subject matter of the complaint appeal which
is already pending before any competent civil court of land. It is settled principle of law.
28. What are the powers and procedure available to the national commission for the disposal of any complaints
or proceedings. Also state the additional powers of the national commission.
Ans. Powers and procedure applicable to the national commission :- According to S. 22 the national commission will
have powers of a civil court as specified in the disposal of any complaints or any proceedings before the commission
as it has been provided.
National Commission has power of a civil court :- On receipt of a complaint the national commission will follow
the same procedure as followed by a civil court, as S. 22 of the act provides for the powers and procedure applicable
to the national Commission. S. 22 provides that the national commission will have same powers as specified under the
Act. They have the powers while trying a suit in respect of the matters regarding :-1)Summoning or enforcing
attendance of any defendant. 2) Compelling production of evidence, any document either material object. 3) to receive
evidence on affidavits 4) power to order for carrying out test 5)power to issue commission on case of examinations of
any witness required.
Procedure to be followed by the National Commission :- The rules framed by the Central Govt. lays down the
procedure to be followed by the national Commission as follows :-
1 A complaint containing the following particulars shall be presented by the complainant in person or by his agent to
the national commission 2 The national commission shall in disposal of any complaint before it, as far as possible,
follow the procedure laid down in the act 3on the date of the hearing or any other date to which hearing could be
adjourned it shall be obligatory on the parties or their agents to appear before the national commission. 4 The national
commission may on such terns as it deems fit and at any stage of the proceedings adjourn the hearing of the complaint
but the complaint shall be decided as far as possible within a period of three months from the date of notice received
by opposite party 5 if after the proceedings conducted under sub-rule the national commission is satisfied with the
allegations contained in the complaint it shall issue orders tot the opposite party or parties as the case may be directing
him or them to take one or more of the things.
Additional powers of the national commission :-
1. The national commission , the state commission and the district forum shall have the power to require any person
(i) to produce before and allow to be examined and kept by an officer o the national commission the state commission
or the district forum as the case may be specified in this behalf such books, accounts, docs or commodities in the
custody or under the control of the person so required as may be specified. (ii)To furnish to an officer so specified,
such information as may be required for the purpose of this act.
2.a where during any proceedings under this act, the national commission the state commission or the district forum as
the case may be has any ground to believe that any book, paper, commodity or document which may be required to be
produced in such proceedings are being or may be destroyed, mutilated, altered or secreted it may by written order
authorize any officer to exercise the power of entry and search of any premises.
3.The national commission , the state commission or the district forum as the case may be on examination of such
seized docs or commodities as the case may be may order the retention thereof or may return it to the party
concerned.
29. Can the appeal be filed against the order of national commission. If yes, when and where.
Ans. When , any person who is aggrieved by an order made by the national commission in the exercise of its powers
conferred by the act may prefer an appeal against such order to the Supreme Court within a period of 30 days from the
date of the said order.
Period of Limitation for filing appeals :- S. 23 provides that any person aggrieved by an order made by the national
commission may prefer an appeal before the supreme court within the period of 30 days from the date of the order.
Power of Supreme Court to Hear Appeals – S. 23 provides that the supreme court may entertain an appeal after the
expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing it within that period.

30. What provision is made for imposing penalties against a trader or person or complainant who fails or omits
to comply with order made by redressal agencies. Examine the constitutionality of the same.
Ans. S. 27 of the act makes provision for imposing the penalties against a trader or person or complainant who fails or
omits to comply with order made by the redressal agencies. They have the powers to punish with imprisonment for a
term which shall not less than one month but may extend to three years or with fine which shall not be less than two
thousand rupees but which may extend to ten thousand rupees or with both.
The non compliance of the order would attract the provisions contained under this section :-
1.Execution – New party has a right to please defence of natural justice :- where an application for anticipatory bail
was filed before the high court against orders u/s 27 passed by a district forum.
2.Constitutionality of section 27 and 25 of the consumer protection act, 1986 :- It was held in a case that penal
provisions in sec. 27 can be applied to the directors of the companies notwithstanding the absence of a specific
provision for action against those in charge of or in control of the affairs of the company.

S-ar putea să vă placă și