No fault liability No fault liability or Strict liability is a legal doctrine that makes a person r esponsible for the damage

and loss caused by his/her acts and omissions regardle ss of culpability (or fault in criminal terms, which would normally be expressed through a mens rea requirement. Strict liability is important in torts (especia lly product liability). In tort law, strict liability is the imposition of liability on a party without a finding of fault (such as negligence or tortuous intent). The plaintiff needs to prove only that the tort happened and that the defendant was responsible. Nei ther good faith nor the fact that the defendant took all possible precautions are valid defenses. Strict liab ility often applies to those engaged in hazardous or inherently dangerous ventur es. The rule laid down in Rylands v. Fletcher is generally known as the Rule in Rylan ds v. Fletcher or Rule of strict liability . Because of the various exceptions to th e applicability of this rule, it would be preferable to call it the rule of Stri ct liability, rather than the rule of Absolute liability. Strict liability is sometimes called Absolute liability to distinguish those sit uations where, although the plaintiff does not have to prove fault, the defendan t can raise a defense of absence of fault. The law imputes strict liability to situations it considers to be inherently dan gerous. It discourages reckless behavior and needless loss by forcing potential defendants to take every possible precaution. It also has the effect of simplify ing litigation and allowing the victim to become whole more quickly. While formulating the rule in M. C. Mehta v. Union of India, the supreme court t he Supreme Court itself termed the liability recognized in this case as Absolute Liability, and expressly stated that such liability will not be subject such ex ceptions as have been recognized under Rylands v. Fletcher. In Rylands v. Fletcher, the defendant got a reservoir constructed, through indep endent contractors, over his land for providing water to his mill. There were ol d disused shafts under the site of the reservoir, which the contractors failed t o observe and so did not block them. When the water was filled in the reservoir, it burst through the shafts and flooded the plaintiff s coal-mines on the adjoini ng land. The defendant did not know of the shafts and had not been negligent alt hough the independent contractors had been. Even though the defendant had not be en negligent, he was held liable. For the application of this rule, therefore, the following three essentials shou ld be there: 18 1) Some dangerous thing must have been brought by a person on his land. 2) The thing thus brought or kept by person on his land must escape. 3) It must be non-natural use of land. Exceptions to the Rule: The following exceptions to the rule have been recognized by Rylands v. Fletcher and some other later cases: i. Plaintiff s own default; ii. Act of God; iii. Consent of the plaintiff; iv. Act of third party; v. Statutory authority. Position in India The rule of strict liability is applicable as much in India as in England. There

has, however, been recognition of some deviation both ways, i.e., in the extens ion of the scope of the rule of strict liability as well as the limitation of it s scope. The liability without fault has been recognized in case of motor vehicle acciden ts. Earlier the Supreme Court had held in the Minu B. Mehta v. Balakrishna, that the liability of the owner or the insurer of the vehicle could not arise unless there was negligence on the part of the owner or the driver of the vehicle. The Motor Vehicles Act, 1938 recognizes liability without fault to a limited extent. According to Section 140 of the 1988 Act, in case of the death of the victim, a fixed sum of Rs.50000 and in the case of his permanent disability a sum of Rs.22 000 can be claimed as compensation without pleading or establishing any fault on the part of the owner or the driver of the vehicle. 19 The claim for compensation for the above mentioned fixed sum shall not be defeat ed by reason of any wrongful act, neglect or default of the accident victim, nor shall the compensation payable be reduced on account of any responsibility in the accident of the accident victim. It implies that the defence of contributory negligence cannot be pleaded in case of an action for no fault liability, as mentioned abov e. If the claim exceeds the fixed sum of compensation as mentioned above, the fault on the part of the owner or the driver of the vehicle, as the case may be, has got to be established. RULE OF ABSOLUTE LIABILITY In M. C. Mehta v. Union of India, the Supreme Court was dealing with claims aris ing from the leakage of oleum gas on 4th and 6th December, 1985 from one of the units of Shriram foods and Fertilizers Industries, in the city of Delhi, belongi ng to Delhi Cloth Mills Ltd. As a consequence of this leakage, it was alleged th at one advocate practicing in the Tis Hazari Court had died and several others w ere affected by the same. The Supreme Court took a bold decision holding that it was not bound to follow t he 19th century rule of English law, and it could evolve a rule suitable to the social and economic conditions prevailing in India at the present day. It evolve d the rule of Absolute Liability as part of Indian law in preference to the rule o f Strict Liability laid down in Rylands v. Fletcher. It expressly declared that the new rule was not subject to any of the exceptions under the rule in Rylands case. The Supreme Court thus evolved a new rule creating absolute liability for the ha rm caused by dangerous substances as was hitherto not there. 20 Where an enterprise is engaged in a hazardous or inherently dangerous activity a nd harm results to anyone on account of an accident in the operation of such haz ardous or inherently dangerous activity resulting. For example, in the escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident a nd such liability is not subject to any of the exceptions which operate vis--vis the tortuous principle of strict liability under the rule in Rylands v. Fletcher . LIABILITY OF STATE IN THE TORTS Under the English Common Law the maxim was "The King can do no wrong" and theref ore, the King was not liable for the wrongs of its servants. But, in England the position of old Common law maxim has been changed by the Crown Proceedings Act, 1947. Earlier, the King could not be sued in tort either for wrong actually aut horized by it or committed by its servants, in the course of their employment. W ith the increasing functions of State, the Crown Proceedings Act had been passed , now the Crown is liable for a tort committed by its servants just like a priva te individual. Similarly, in America, the Federal Torts Claims Act, 1946 provide s the principles, which substantially decides the question of liability of State . The question of tortuous liability of State has raised many interesting debates in juridical arena. In India, there is no legislation, which governs the liabili

ty of the State for the torts committed by its servants. It is article 300 of th e Constitution of India, 1950, which enumerates the liability of the Union or St ate in tortuous act of the Government. 21 The Article 300 of the Constitution originated from Section 176 of the Governmen t of India Act, 1935. This could be traced back from the Section 32 of the Gover nment of India Act, 1915, the genesis of which can be found in section 65 of the Government of India Act, 1858. Section 65 of the Government of India Act, 1858 provided "All persons and bodies politic shall and may have and take the same suits, for India as they could have done ag ainst the said Company." It will thus be seen that by the chain of enactment beginning with the Act of 18 58, the Government of India and Government of each State are in line of successi on of the East India Company. In other words, the liability of the Government is the same as that of the East India Company before, 1858. Article 300 reads as : (1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State any m ay, subject to any provision which may be made by Act of Parliament or of the Le gislature of such State enacted by virtue of powers conferred by this Constituti on, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding provinces or the corresponding India n States might have sued or been sued if this Constitution had not been enacted. (2) If at the commencement of this Constitution - (a) any legal proceedings are pending to which the Dominion of India is party, the Union of India shall be de emed to be substituted for the Dominion in those proceedings; and (b) any legal proceedings are pending to which a Province or an Indian State is a party, the c orresponding State shall be deemed to be substituted for the province or the Ind ian State in those proceedings. An overview of Article 300 provides that first part of the Article relates to th e way in which suits and proceedings by or against Government may be instituted. It enacts that a State may sue and be sued by the name of the Union of India, a State may sue and be sued by the name of the State. 22 The Second part provides, inter lia, that the Union of India or a State may sue or be sued if relation to its affairs in cases on the same line as that of Domin ion of India or a corresponding Indian State as the case may be, might have sued or been sued of the Constitutio n had not been enacted. The Third part provides that it would be competent to th e Parliament or the legislature of State to make appropriate provisions in regar d to the topic covered by Article 300(1). Similarly in Nobin Chander Dey V. Secretary of State for India, the Calcutta Hig h Court gave full effect to the remarks in rejecting the plaintiff's plea for da mage against wrongful refusal to him of a license to sell certain excisable liqu ors and drugs resulting in the closure of his business on the ground that grant or refusal of a license was a sovereign function lying beyond the reach of the t ortuous liability of the State. Since then, the distinction between the sovereig n and non-sovereign functions of the State has been the basis of a number of jud icial pronouncements. Keeping in view of uncertainty of State liability and different judicial pronoun cements, the Law Commission in its First Report, 1956 highlighted the need for a comprehensive legislation in the pattern of the Crown Proceedings Act, 1947 to fix up tortuous liability of the Government. Based on the Law Commission Report, the Government (Liability in Torts) Bill was presented in the Parliament in the year 1967, but it has not yet become the Law. The bill seeks to define the liab ility of the Government towards third parties for the wrongs of its servants, ag ents and independent contractors employed by it. 23 In this state of affairs, the Rajasthan High Court after holding the State of Ra jasthan liable in tort certified the case fit to be taken to the Supreme Court i n State of Rajasthan v. Vidyawati. In this case, a Government Jeep knocked down

a pedestrian who died in consequence of accident. Rejecting the appeal by the St ate of Rajasthan on the ground of Sovereign Immunity, the Court ruled that the S tate is liable for the tort or wrongs committed by its officials. In this case d istinction between sovereign and non-sovereign functions was disregarded, but th e court observed that the State would not be responsible for the 'Act of State' under Article 300 of the Constitution. Petitioner Vidyawati was awarded a compen sation of Rs. 15000/-. The Supreme Court, in this case, added that in modern tim es, the State has welfare and socialistic functions and the defence of State imm unity based on the old feudalistic notions of justice cannot be sustained. Again, in Kasturi Lal V. State of U.P., the Apex court has adopted a pro-people approach. In this case the Police seized some suspected stolen gold from Plainti ff. Later, it was misappropriated by Head Constable of the Police Station who re portedly fled to Pakistan with the Gold. The Supreme Court held that the State i s not liable as impugned act is a sovereign activity. The Court did not find the Vidyawati case having decided anything different from this which according to i t, had always been the law since P&O Steam Navigation Company case and was consi stently followed. The Court expressed its displeasure with this legal position i n a welfare state where the activities of the State had enormously increased and asked the State to take necessary legislative steps to remedy the situation on some such lines as the Crown Proceedings Act, 1947 in England. The court also ex pressed its distress over the plight of the appellant who could not know his pos ition and get any relief. Thus, the court not only reversed what appeared to be the legal position after V idyawati case but also reinforced an additional qualification to the State liabi lity by referring to the statutory powers; in a way holding that State is not li able for any torts committed by its servants in the exercise of statutory powers . Though Kasturi Lal has not been overruled or reconsidered by a constitutional be nch of the Supreme Court, great dissatisfaction has been expressed about it in s everal writings and judicial decisions. Consequently, the court has found escape routes, either by restricting its ratio or by innovating new remedies. An impor tant decision restricting its ratio is N. Nagendra Rao & Company V. State of A.P . in which the court held the State of Andhra Pradesh liable for the loss caused to the appellant by the negligent exercise of powers by the State officials und er the Essential Commodities Act, 1655. The court observed that no civilized sys tem could permit an executive to play with the people of a country and claim to be sovereign. To place the State above the law is unjust and unfair to the citiz en. In the modern sense the distinction between sovereign and non-sovereign func tions does no exist. The ratio of Kasturi Lal is available to those rare and lim ited cases where the statutory authority acts as a delegate of such functions fo r which it cannot be sued in a court of law. 24