17

THE LAW OF TORTS

P.M. Bakshi

The law of torts in India (as in most common law jurisdictions),

is largely uncodified law. The importance of judicial contribution
to its development is thus obvious. Even in those areas where the
law on a particular topic is codified, e.g., the Fatal Accidents Act,
1855, there is considerable scope for judicial contribution, in the
shape of: (a) interpretation of the relevant legislation; and
(b) exposition of principles of law on matters not covered by the
legislation.
Such judicial contribution may come from the Supreme Court,
the high courts and (in certain cases), by specially constituted
judicial bodies (such as, commissions constituted under the
Consumer Protection Act, 1986). Accidents of litigation will
determine what matters will reach the Supreme Court or other
courts. In this sense, how far a particular court can contribute to
the systematic development of the law on a particular subject will
largely depend on the number and type of matters that happen to
be litigated before it. Nevertheless, during the last fifty years,
quite a large number of issues pertaining to the law of torts have
come up before the Supreme Court of India, with the result that
the material on the subject (as emanating from Supreme Court
rulings) is not scanty. The court has been called upon to deal with
 T H E LAW OF TORTS 591

several important points. Here are a few examples, selected at

random.
(a) Strict and absolute liability.1
(b) Liability of the State in tort. 2
(c) Liability for death caused by tort. 3
(d) Vicarious liability of the master for acts of his servant.4
(e) Exemplary damages 5 and interest on damages.6
(f) The law of arrest, in a case dealing with important aspects of
constitutional law and criminal procedure also.7
(g) Compensation for arrest, a topic now familiar to consti
tutional lawyers in India, studded with rich case-law.8
(h) Conspiracy as an actionable combination, in the context of
industrial relations. 9
(i) Material disturbance of right of easement or natural right. 10
(j) Profits a pendre.11
(k) The torts of conversion and detinue. 12
(1) The tort of negligence,13 in particular, medical negligence14
and liability for ultra-hazardous activities.15
Most of the torts mentioned above are wrongs fairly familiar
to tort lawyers in other common law jurisdictions. In the Indian
context, it is also desirable to mention the emergence of what
may be conveniently called a 'constitutional tort', which consists
l
M.C. Mehta v Union of India AIR 1987 SC 1086.
2
See infra, section on Act of State.
3
For example, Official Liquidator v PA. Tendolker (1973) 1 SCC 602,
615, 616; M.S. Ezhthassan v T. Gopalankutty Nair (1986) 1 SCC 188
at 120.
4
For example, Pushpabai v Ranjit Ginning and Pressing Co. AIR 1977
SC 1735.
S
M.C. Mehta, supra, note 1.
6
Chameli Watt v Delhi Municipal Corporation (1985) ACJ 645.
7
Joginder Kumar v State of UP AIR 1994 SC 1349, 1353.
%
Rahul Shah v State of Bihar AIR 1983 SC 1086.
9
Rohtas Industries Ltd v Staff Union (1976) 2 SCC 82, 95.
10
Chapsibhai Dhanjibhai Dand v Purshottam AIR 1971 SC 1878.
u
State of Bihar v Subodh Gopal AIR 1968 SC 281.
12
See infra, section on Torts Affecting Tangible Moveable Property.
13
See infra, section on Negligence.
14
Laxman v Trimbak AIR 1969 SC 128.
15
For example, M.C. Mehta, supra, note 1.
592 FIFTY YEARS OF THE SUPREME COURT

in an act or omission that violates a constitutional right

particularly, a fundamental right. Relief under this head, where it
is granted for the violation of a fundamental right, is not hedged
in by constraints of the law of torts. In fact, in this sphere, courts
have been able to do away with some of the doctrines (of the
general law of torts) that make liability dependent on fault some
of which create controversies, e.g., State liability for acts
committed in the course of 'sovereign' functions.16
It is also proper to mention here that the Supreme Court has
accorded recognition to what may be called the tort of
misfeasance in public office, in two cases where Union ministers
were ordered to pay damages to the State for mala fide official
action amounting to abuse of power.17 In regard to one such case,
however, the judgement was set aside on review.18

Essential Elements of Tort Liability

A tort is generally viewed as the breach of a duty owed to the
public in general (as distinguished from a duty owed to an
individual). This aspect was adverted to by the Supreme Court
while emphasizing the distinction between breach of contract and
tort. 19 Incidentally, in this case, the court had also occasion to
examine the concept of non-feasance.
The legal concept of tort may be said to comprise two facets
the act and the mind. The 'acf represents the physical element.
The 'mind' represents the mental element. What physical acts are
acknowledged as torts, depends upon the judicial approach
thereto. What state of mind must accompany such physical act, is
a question on which considerable legal learning has been
expended. In general, either intention or negligence is regarded as
an essential element. Liability so based on a mental state has
come to be described as 'fault based' liability. It is in this sphere
that the Supreme Court has struck a new path, by imposing
absolute liability for harm caused by ultra-hazardous activities in

l6
Nilabati Beber, v State of Orissa (1993) 2 SCC 746.
"Common Cause v Union of India (1996) 8 SCALE 127, 130.
18
Newspaper report, 4 August 1999 (case of Captain Satish Sharma).
l9
Jaylaxmi Salt Works P. Ltd v State of Gujarat (1994) 4 SCC 1.
 T H E LAW OF TORTS 593

M.C. Mehta. It is needless to emphasize that this goes beyond

the rule of strict liability, laid down in Rylands v Fletcher.,21
The following rule was laid down in M.C. Mehta:
Where an enterprise is engaged in a hazardous or inherently
dangerous activity and harm results to anyone on account of an
accident in the operation of such hazardous or inherently dangerous
activity, resulting, for example, in the escape of toxic gas, the
enterprise is strictly and ahsolutely liable to compensate all those who
are affected by the accident and such liability is not subject to any of
the exceptions which operate vis-a-vis the tortious principle of strict
liability under the rule in Rylands v Fletcher.1*

In Charan Lai Sahu2i some points (as stated in M.C. Mehta)

were doubted. In the Bhopal gas disasters victims case the M.C.
Mehta principle was applied. 24 The Supreme Court 25 has now
held that the rule laid down in M.C. Mehta26 was not obiter and
was appropriate and suited to the conditions prevailing in India.

Capacity of Parties
Two questions, drawn from the field of law of persons, as Roman
lawyers would call it, can arise in the context of the law of torts.
(a) Is the person suing in tort entitled so to sue?
(b) Is the person being sued in tort liable so to be sued?

These are substantive issues, but often mixed up with:

procedure.
Thus an enemy alien, who has not obtained the central
government's permission to reside in India, cannot sue in Indian

20
Supra, note 1, reaffirmed in Charan Lai Sahu v Union of India AIR
1990 SC 1480.
21
(1968) LR 3 HL 330.
22
Supra, note 1 at 1099.
2i
Supra, note 20 at 1557.
24
Union Carbide Corporation v Union of India AIR 1990 SC 273 at
281.
2S
Indian Council for Enviro-Legal Action v Union of India (1996) 2
SCALE 44, 69.
2e
'Supra, note 1.
594 FIFTY YEARS OF THE SUPREME COURT

courts. A foreign State cannot be sued without the permission of

the central government."
These are procedural provisions. From the substantive angle,
one has to consider the question whether:
(a) the law debars any person from acquiring a right to damages
in tort; and
(b) the law confers on any person an immunity from tortious
liability.
In regard to query (a) above, it may be mentioned that Indian
law does not recognize the concept of 'civil death'. In one case,
decided by the Supreme Court, one convict in jail was attacked by
another convict in the jail and was killed, as the jail authorities had
failed to protect him. In a petition filed under article 32 by the
dependents of the deceased convict, a compensation of Rs 1,00,000
was awarded against the State of Uttar Pradesh for violation of the
fundamental right to life guaranteed by article 2 1 . 2 8
As regards immunity from tortious liability, an important issue
that has to be considered, relates to position of the government.
Considerable case-law and academic literature have gathered
around this topic. In fact, it is an area where constitutional
history, constitutional law, administrative law and the law of
torts criss-cross each other. In practice, the importance of the
immunity has been drastically reduced by reason of the fact that
where a fundamental right is violated by the State or its officers
or agencies, the immunity is not recognized,29 as the matter is
then taken as governed, not by the principles applicable to torts
in general, but by doctrines emanating from fundamental
principles of constitutional lawa region not haunted by the
ghosts of colonial legal doctrines. It would be tempting to embark
on a survey of the numerous judicial decisions on the subject
and to take note of the crisp but positive and specific
recommendations of the Law Commission of India on the
subject,30 of certain abortive attempts to legislate in this sphere.

27
Scctions 83-6, Code of Civil Procedure, 1908.
Kewal Pati v State of UP (1995) 2 SCALE 729.
29
Supra, note 16.
30
Law Commission of India, first report, 1956 on Liability of the State
in Tort.
 T H E LAW OF TORTS 595

For the purposes of the present contribution, however, it appears

to be sufficient to state the position (with the help of the relevant
judicial decisions) in the form of a few propositions, as under:
(a) The State is not liable for torts committed by its employees
within the scope of their employment, if the tort is
committed in connection with the exercise of sovereign
functions of the State. 31
(b) The State is liable for torts committed by its employees
within the scope of their employment, if the tort was
committed in connection with the exercise of the non-
sovereign functions of the State. 32
(c) Welfare activities of the government are not regarded as
'sovereign functions' for this purpose. 33
(d) Nor are routine activities, such as maintenance of vehicles of
officers of the government. 34
(e) A 'service' (facility) provided to a 'consumer' within the
meaning of the Consumer Protection Act, 1986 35 is not a
'sovereign' function.36
(f) Running of a hospital is also not a sovereign function.37
(g) The mere fact that a tort is committed by a member of the
defence forces does not make the activity a sovereign one. 38
This was laid down by the Supreme Court in a case in which
a military truck, coming from Delhi, went on the wrong side
owing to the driver's negligence and hit a culvert. Four
persons sustained severe injuries. The truck was part of the
First Armoured Division. During the Indo-Pak war, 1971,
the Division had moved to Ferozepur. After the war, the
Division was ordered to move back to Jhansi and during that
movement the accident occurred. The truck was carrying
rations and some sepoys. The high court held that it was a
sovereign activity, but the Supreme Court reversed the high
court's judgement.
il
Kasturilal v State of UP AIR 1965 SC 1039.
32
State ofRajasthan v Vtdyawati AIR 1962 SC 933.
i3
Shyam Sunder v State of Rajasthan AIR 1974 SC 890.
34
Supra, note 31.
35
Consumer Protection Act, 1986.
ib
Lucknow Development Authority v M.K. Gupta AIR 1994 SC 787, 796.
i7
Achutrao H. Khodwa v State of Maharashtra AIR 1996 SC 2377.
i8
Pushpa Thakur v Union of India (1984) ACJ 549 (SC).
596 FIFTY YEARS OF THE SUPREME COURT

Act of State
At this stage, it may be proper to dispose of one topic analogous
to sovereign immunity, namely that of 'act of State' (though this
would involve a tangential discussion of some doctrines of
constitutional law).
According to classical doctrine 39 an act of State is an act of the
executive, i.e. the sovereign power of a country, that cannot be
challenged, controlled or interfered with by municipal courts. Its
sanction is not that of law, but that of sovereign power; and
whatever it may be, municipal courts must accept it as it is,
without question.
However, two qualifications should be noted:
(a) There can be no 'act of State' on the Indian soil, as regards
Indian citizens or aliens.
(b) There can be no 'act of State' outside India as regards Indian
citizens.
The English law doctrines as to acts of state have been
followed in India. 40 Of course (as pointed out above), the
immunity on the basis of act of State is not available in respect
of governmental action which is directed against a citizen of
India. 41
So far as Indian citizens and friendly aliens are concerned,
there has to be a legal remedy for every wrongful action of the
government. 42

Justification for Torts

In certain exceptional situations, the law permits an act to be
committed even if it is otherwise tortious, because of certain
overriding considerations. These are situations in which the need
to protect specific higher values is taken as justifying or excusing
the infliction of harm in respect of body, mind, reputation or
property.
i9
Salaman v Secretary, State of India (1906) 1 KB 639.
*State of Gujarat v Vora Fida Alt AIR 1964 SC 1043.
*lMadhav Rao Jivaji Rao Sandia v Union of India AIR 1971 SC 530.
*2B.K. Mohapatra v State of Orissa AIR 1988 SC 24, 28, 29.
 T H E LAW OF TORTS 597

Apart from defences available in regard to particular torts, the

general defences available in respect of most torts on the above
basis are: Contributory negligence; consent; plaintiff's default,
necessity and private defence; authorization; inevitable accident
(act of God); and limitation. 43
One of these defences has come up for discussion in a
judgement of the Supreme Court. 4 4 ,The case related to the
occupation of certain premises of the Municipal Corporation of
Bombay by pavement dwellers. The case had certain consti
tutional dimensions also, by virtue of arguments based) on the
right to life. But what is of importance for the present purpose
is a dictum about 'necessity' supplying a justification for the
(alleged) trespass. N o final opinion was expressed on the point.
But it may be of interest to note that in English law necessity is
recognized as a defence to an action for trespass under very
stringent conditions, namely, the defendant pleading this defence
must show that his act was reasonably necessary to prevent harm
to a third party or to himself.45
The Court of Appeal in one case46 rejected the plea of necessity
advanced by the defendants who occupied the plaintiff's vacant
house, for the benefit of homeless families. Lord Denning M.R.
observed:
Necessity would open a door which no man could shut. The plea
would be an excuse for all sorts of wrong doing. So the courts must,
for the sake of law and order, take a firm stand. They must refuse
to admit the plea of necessity to the hungry and the homeless, and
trust that their distress will be relieved by the charitable and the
good. 47

Of course, constitutional rights may possibly compel a differ

ent approach in such situations. But so far as the law of torts is
concerned, Lord Denning's enunciation would be valid for India
also.

43
Dias and Markesinis, Tort Law (1988) (Clarendon Press, Oxford) at
489, 521.
**Olga Tellis v Municipal Corporation of Bombay AIR 1986 SC 180.
*sRi#by v Chief Constable of Northampton (1985) 1 WLR 1242.
'"South West London Borough Council v Williams (1971) 1 Ch 734.
47
Ibid. at 744.
598 FIFTY YEARS OF THE SUPREME COURT

Death in Relation to the Law of Torts

The event of death of a party raises two kinds of questions in the
law of torts, as under:
(a) If the wrongdoer or the person wronged dies, does a cause of
action which had already accrued before death survive?
(b) Does the act causing death (if it amounts to a tort in other
respects) give rise to a cause of action?
These questions came to be raised because the common law
adopted a negative approach on the subject. The position was
remedied in England as well as in India by reforming legislation.
However, a brief look at the common law would be useful.

Death and the Survival of Causes of Action

At common law personal actions died with the party. As stated
above, the position was changed by law reform. In India, for
example the Legal Representatives Suits Act, 1855 and section
306 of the Indian Succession Act, 1925, incorporate the present
law on the subject. With certain exceptions, causes of action now
survive in favour of or against the legal representatives of the
deceased victim or wrongdoer, as the case may be.

Death as Giving Rise to a Cause of Action

The second question relates to death as furnishing a cause of
action. Here again, the common law had an irrational rule 48
which barred any claim by the dependents of the deceased victim
of a tort which had caused death. In England, it was abrogated
by the Fatal Accidents Act, 1846 (successively replaced by
subsequent Acts) and in India by the Fatal Accidents Act, 1855
(which is still in force).
It is in the context of this issue that several questions have
arisen, including the important question how compensation is to
be assessed under the Act of 1855. In one of its judgements the
Supreme Court of India has had an occasion to deal with the
origin of the common law maxim and has offered the following
hypothesis:

**Baker v Bolton (1808) 1 Camp 493:170 ER 1033.

 T H E LAW OF TORTS 599

It seemed to have resulted from the strong quasi-criminal character of

the action for trespass. Just like a prosecution for criminal offence, the
action for trespass, which was the parent of much of our modern law
of tort was held, by applying this maxim, to be incapable of surviving
the death of the wrongdoer, and, in some cases, even of the party
injured. The maxim, with its extension, was criticised by Winfield and
found to be pregnant with a good deal of more mischief than was ever
born of it.49
The court further pointed out that the maxim did not apply to
actions based in contract or where a tort feasor's estate had
benefited from a wrong done. The maxim has also no application
to suits for eviction under the Rent Control Act.50
It does not apply to industrial disputes under sections 2A and
33C(2) of the Industrial Disputes Act, 1947. 51
It was also pointed out that there was no reason to extend the
maxim to cases involving breaches of fiduciary duties or to the
case of a director whose personal conduct had been fully inquired
into and the only question for determination, on an appeal was
the extent of the liability incurred by the deceased director.52
The Supreme Court has further pointed out that the maxim is
inapplicable in those cases where the injury caused to the deceased
person has tangibly affected his estate or has caused an accretion to
the estate of the wrongdoer, or where the cause of action arises out
of breach of contract. The maxim has also no application when
the claim is decreed and the plaintiff dies pending an appeal against
the decree. The reason is that the claim becomes merged in the
decree and the decretal debt forms part of the plaintiff's estate,
devolving on his death on his heirs, executors or administrators.
For example, if a suit for defamation is decreed and the
plaintiff dies pending an appeal against the decree, the suit will
not abate, but if the suit is dismissed and the plaintiff dies
pending an appeal filed by him, the appeal will abate.54

*9Supra, note 3 at 616.

50
Shantilal Thakur Das v Chiman Lai Magan Lai Lala AIR 1976 SC
2358.
sl
Rameshwar Manjhi v Management of Sangramgarh College AIR 1994
SC 1176.
52
Supra, note 3 at 626.
53
M. Veerappa v Evelyn Seaueira AIR 1988 SC 506, 516.
5
*Supra, note 3 at 121.
600 FIFTY YEARS OF THE SUPREME COURT

Compensation to Dependents on Death

The damages to be paid to dependents on death must answer
what (according to) contemporary society would allow the
wrongdoer to hold up his head and say with their approval that
he has done'the fair thing. And further, the amount awarded must
not be niggardly, since the law values life and limb in a free
society in generous scale. Spelling out these enunciations, the
Supreme Court has said that the sum awarded must be fair and
reasonable by accepted legal standards.55 Certain guidelines laid
down in this regard by the Gujarat High Court have been
approved by the Supreme Court. 56 These are meant to protect
illiterate and minor claimants and contain, inter alia, instructions
as to deposit of the amount of compensation in bank. The actual
assessment of the quantum has to take into account many
.'imponderables, e.g., the life expectancy of the deceased and the
dependents, the amount that the deceased would have earned
during the remainder of his life, the amount he would have
contributed to' the dependents during that period, the chances
that the deceased may have lived or the dependents may not live
up to the estimated remaining period of their life expectancy, and
the chances that the deceased might have got better employment
or income or might have lost his employment or income
altogether. 57
In this regard, certain criteria were laid down in earlier cases
also.58 In practice, the method adopted is as under:
(a) Determine, first, the figure of annual dependency;
(b) Multiply it with a 'multiplier1. This multiplier is fixed on the
number of years 'purchase'.
(c) Reduce the multiplier, so as to take into account all
considerations for reduction of the sum to be awarded.
(d) Where the annual dependency is likely to vary in future, two
alternatives are available:

^General Manager, Kerala State Road Transport Corporation v Suramma

Thomas AIR 1994 SC 1631 at 1632.
56
Ibid. at 1637.
57
Ibid. at 1633.
5S
Gobald Motor Service v Veluswami AIR 1962 SC 1; Municipal
Corporation of Delhi v Subhagwanti AIR 1966 SC 1750; C.K. Subramania
Iyer v T. Kunthikuttan Nair AIR 1970 SC 376.
 T H E LAW OF TORTS 601

(i) keep the figure of.the present annual dependency intact

and alter up or down the multiplier; or
(ii) settle (i.e. adjust) the figure of annual dependency itself in
such manner, that it represents anticipated future variations.
This practice was approved by the House of Lords in Mallet
v McMonaglc^ which was cited with approval by the Supreme
Ckmrt of India in several judgements. 60
Often, the death of the deceased may bring in some monetary
benefits, wliich must be taken into account. In Davis v Powell
Duffiyn Associated Colliery Ltd,bl Lord Wright said, 'TJie actual
pecuniary loss of each individual entitled to sue can only be
ascertained by balancing, on the one hand, the loss to him of the
future pecuniary benefit and, on the other hand, any pecuniary
advantage, which from whatever source, comes to him by reason of
the death1. Lord Wright's exposition of the law has been approved by
the Supreme Cxuirt of India, which has observed as under:
The general principle is that the pecuniary loss can be ascertained
only by balancing on the one hand the loss to the claimants of the
future pecuniary benefit and on the other any pecuniary
advantage which from whatever source comes to them bv reason
of the death, . . . , 62

Vicarious Liability
'Vicarious liability' is a term referring to cases where one person
is held liable for tort committed by another person. It mainly
comprises two situations:
(a) Liability of a master for the torts of his servant, committed
in the course of his employment.

59
(1970) AC 166 (HL).
60
For example MPSRT Corporation v Sudlmkar AIR 1977 SC 1189; see
also supra, note 55 at 1634-5; National Insurance Corporation v
Swarnlata Das AIR 1996 SC 1259, 1261.
6l
Davies v Powell Duffiyn Associated Collieries Ltd (1942) AC 601 (HL)
at 612.
62
Supra, note 58 at 6.
602 FIFTY YEARS OF THE SUPREME COURT

(b) Liability which may arise against the employer of an

independent contractor.63
As regards master and servant, the general principle is well
established.64 The emphasis here is on the essential requirement
of 'course of employment'. If the unauthorized and wrongful act
of the servant is not so connected with the authorized act as to
be a mode of doing that authorized act, then the master is not
liable, for in such a case the servant is not acting in the course of
employment, but is going outside it.65
It is obvious that the above criterion requires us to draw
mentally a circle that delimits the 'course of employment' and to
remember that the master is liable for all acts (of the servant)
within that circle. This in its turn, requires us to ascertain, first,
whether there is an 'employment' relationship and secondly, to
ascertain the circle denoted by the course of employment. The
course of employment is not ordinarily defined with precision.
What the employment relationship fails to provide for, must
therefore be adjudicated upon by the courts. In a well known
English case66 the owner of a car which was being driven from
London to Monte Carlo at the owner's request and for his benefit
was held liable for the drivers negligence in causing a collision.
The test applied was 'purposes' of the masteran extension of the
concept of employment. This approach seems to have been
adopted by the Supreme Court of India 67 when holding that the
owner is liable for the negligence of the driver (servant), not only
if he is acting in the course of his employment, but also when the
driver is, with the owner's consent driving the car on the owner's
business or for the owner's purposes.

n3
David Baker, Introduction to the Law of Tort 1985 (Law Book Co. of
Australia) at 206.
M
Sitaram Motilal Kalal v Santanu Prasad Jaishankar Bhatt AIR 1966
SC. 1697; State of Maharashtra v Kanchanmala Vijay Singh Shirke AIR
1995 SC 2499.
6
'State of Maharashtra v Kanchanmala Vijay Singh Shirke ibid.
""Ormond v Crossville Motor Services [1953] 2 All ER 753 (CA).
67
Pushpabai Pimhottam Udeshi v Ranjit Ginning & Pressing Co. AIR
1977 SC 1735.
 THK LAW OF TORTS 603

An act may fall within the 'course of employment', even where

it is not authorized, as such, by the employer provided it is merely
an unauthorized mode of doing an authorized act.68 This
proposition was held down long ago at common law.69 In India,
the Supreme Court 70 seems to have acted on this principle in
holding the employer liable in the following circumstances. A
government jeep was being driven for official purposes. The driver
was somewhat drunk and allowed a clerk to drive the vehicle,
causing an accident. The government was held to be liable, on the
basis that what had been done was an authorized act in an
unauthorized manner. It will be seen that here the extension was
really from an authorized employee to an unauthorized
employee.71 In fact, even in India, there have been a few other
cases of a similar nature 72 where the employer has been held to be
liable for the accidents caused by a cleaner or conductor 73 to
whom the driver had entrusted the car temporarily
To the layman, such extension of vicarious liability may appear
to be rather odd. But, in practice, the employer, who may become
liable to pay under the 'extensions' referred to above, would, in
his turn be indemnified by his insurers, as (in modern times)
insurance is compulsory by law. In cases where insurance is not
compulsoryas in the case of the governmentcourts themselves
have stressed the need for observing caution, while imposing
vicarious liability on the employer.74
There have also been cases where the tort in question was held
to be outside the course of employment. Let us take a case
involving a bank.75 The plaintiff, who had a savings bank account
with the bank, handed over a cheque and cash to an employee of
the bank who was a neighbour and friend of the plaintiff's
husband, with a letter of instructions and pass-book for being
credited to her account. The employee misappropriated the amount
6S
Supra, note 65.
69
Litnpus v London General Ommibus Co. (1862) 1 H & C 526; Century
Insurance v N.I. Road Transport Board (1942) 1 All ER 491 (HL).
70
Supra, note 65.
n
Cf Likixv v Samuels (1963) 1 WLR 991: [1963] 2 All ER 879, 889.
72
Skandia Insurance Co. v Kokilaben AIR 1987 SC 1184.
7i
Sohan Lai Passi v P. Sesh Reddy (1996) 5 SCALE 388.
7
*Supra, note 65.
7S
State Bank of India v Shyama Devi AIR 1978 SC 1263.
604 FIFTY YEARS OF THE SUPREME COURT

and made false entries in the pass-book. The employee was not in
charge of the savings bank counter and the cheque and cash were
not handed over to the counter-clerk concerned. It was held that
the bank was not liable for the fraud of the employee. The
employee concerned had no actual or apparent authority to accept
the cheque, and the act was not in the course of his employment
and all that could be said was that 'the fact of his being an employee
of the bank' gave him an opportunity to commit the fraud.
It is often said that the law relating to liability of an employer
for wrongs committed by an independent contractor is puzzling.
Of course, when the employer has intentionally or negligently
assigned the work to an independent contractor no difficulty
arises in imposing tortious liability on the employer. But other
situations create difficultiespartly because the policy reasons for
imposing liability on the employer are not clear.
The general principle is that the employer is not so liable.76
But statutory provisions, e.g., legislation relating to motor
vehicles, may lead to the court holding the owner of a car liable
in tort for injuries caused by an employee, not of the owner but
of the repairer.77 Incidentally, in this context, it is of interest to
note that in Australia, statutory provisions relating to compulsory
insurance place liability upon the owner of a car for its negligent
driving, by whomsoever it is driven and in any circumstances,
including even driving by a thief.78

Remedies for Tort

Damages
Where a tort has been committed, or is being committed, the
question of remedies arises. Damages are usually awarded, when
a tort has been committed. Injunction is the special remedy that
can be sought:
(a) when a tort has been committed, the object of the remedy
being to secure its discontinuance or to prevent its
commission;
76
Guru Govekar v Fikmena F. Lobo AIR 1988 SC 1332.
77
Ibid. at 1334.
78
David Baker, supra, note 61.
 T H E LAW OF TORTS 605

(b) when a tort is being committed or is threatened, the object

being to secure its discontinuance or prevent its commission
or repetition.
In Indian law, damages for tort still remain a common law
remedy, while injunctions are governed by statute. Damages are
a matter of right (though the quantum may vary). Injunctions, on
the other hand, are discretionary.
The general principle is that, in an action for tort, the purpose
of damages is to attempt to put the plaintiff in the position in
which he would have been, if the tort had not been committed
but only to the extent to which money can do it. 79
Thus, restitutio in integrum is the dominant rule of law, as Lord
Wright put it. 80
However, there are certain special situations where the
above approach may be modified, by enhancing or reducing
the quantum of damages. Chief examples of such modified
approaches appear to be the following:
(a) Contemptuous and nominal damageshere damages may be
reduced to 'the smallest coin of the realm. 8!
(b) Special damagese.g., loss of future earnings (if pleaded and
proved).
(c) Aggravated and exemplary damagesusually awarded because
of the outrageous character of the tort. 82 They are awarded to
indicate judicial approval of such conduct of the defendant.83
(d) Parasitic damagesawarded for the impairment of an interest
which, in itself is not protected by the tort in question. Thus
a woman who suffered severe facial displacement in a car
accident received damages for the resulting loss of her
husband's consortium?'"'
It may be of interest to note that in India, the Supreme Court
has accepted the principle, that exemplary damages may be
79
Liesbosch Dredger v Edison SC, (1933) AC 449.
80
Ibid.
sl
Constantine v Imperial Hotels (1944) KB 693; Newslead v London
Express Newspaper (1940) 1 KB 377 (one farthing awarded, for
defamation).
82
Morris 'Exemplary Damages', (1957) 70 Harvard Law Review at 517.
si
Cf John v MGN Ltd [1996] 2 All ER 35 (CA) (Libel).
u
Lampart v Eastern National Omnibus (1954) 1 WLR 1047.
606 FIFTY YEARS OF THE SUPREME COURT

awarded for oppressive, arbitrary or unconstitutional acts of the

government or of a statutory authority.85
The State, it has been held, is entitled to recover from public-
servants exemplary damages for unconstitutional action in the
disposal of public property. 86 Exemplary damages are also
awarded for harm resulting from ultra-hazardous activities.87

Injunction
The main remedy (other than an award of damages) is the
injunction. An injunction is an order requiring the defendant to
desist from some wrongful course of conduct. In some areas
e.g., nuisance and economic tortinjunction is the dominant
remedy.88 This may be because the harm caused by such torts is
intensive in magnitude and recurrent in nature and (in case of
economic torts) wide in its geographical coverage.
In India, the power of the court to grant permanent injunction
is derived mainly from sections.38-42 of the Specific Relief Act,
1963 (SRA). The central concept underlying these provisions is
that of breach of obligationsi.e. a violation of a duty imposed
by law. In this sense the topic of injunction necessarily takes one
to various areas of substantive law; including, of course, the law
of torts.
Thus, to take a few examples at random, injunctions have been
sought or granted:
(a) to prevent interference with the plaintiff's possession and
business, after termination of agency;89
(b) to deal with cases of enforcement of bank guarantees; 90
(c) to prevent illegal recovery of taxes;91
(d) to adjust conflict of interests between private reputation and
freedom of the press;92
&s
Supra, note 36 at 798.
8<
'Common Cause v Union of India AIR 1996 SC 3081; Shivasagar
Tiwari v Union of India (1996) 7 SCALE 643; (1996) 8 SCALE 338.
i7
M.C. Mehta, supra, note 1.
88
W.H. Roger, Law of Tort (1989) at 219.
S9
Southern Roadways Ltd, Madurai v S.M. Krishnan AIR 1990 SC 673.
90
Svenska Handelsbanken v Indian Charge Chrome AIR 1994 SC 626.
9l
Municipal Corporation of Delhi v C.L. Batra JT (1994) 5 SC 241.
Reliance Pertothemitis Ltd v Proprietors of Indian Express Newspapers
Bombay, AIR 1989 SC 190.
 T H E LAW OF TORTS 607

(e) (in England), to prevent violations of the criminal law.93

It may also be mentioned that the Supreme Court of India has
had occasion to deal with the ever-vexing question of defamation
of public figures, in the context of injunctive relief.94
The area of human activity that may be monitored by
injunction, is thus, very wide. Moreover, an injunction issued by
the court necessarily restricts the freedom which is otherwise
available to the person injuncted. These are important consider
ations that put the court on guard. But then the person who
comes to court is keen to seek immediate relief, as it may happen
that if the question of grant of injunctive relief is left for decision
at the final stage, irreparable harm may result. These factors have
been instrumental in persuading the legislature to insert (usually
in the procedural law) provisions for interlocutory injunctions. In
India, these provisions are mainly contained in Order 39 of the
Code of Civil Procedure, 1908. But the power has to be exercised
cautiously having regard to the considerations mentioned above.
It is in this context that courts have laid down certain guidelines.
These guidelines (till 1975) require the court to examine
(before granting an interlocutory injunction):
(a) whether there was a prima facie case made out by the
applicant for interlocutory injunction;
(b) whether the applicant would suffer irreparable harm if an
injunction were not granted; and
(c) whether the balance of convenience lies in favour of the
applicant.
These were generally followed in England, as well as in India,
till 1975.
In 1975, the House of Lords, modifying the first requirement
mentioned above, laid down 95 that the applicant must show that
there was a serious question to be tried. The effect of this
pronouncement has been neatly put by Halsbury, in these words:

9i
Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd
[1992] 3 All ER 717.
94
. Rajagopal v State of Tamil Nadu AIR 1995 SC 264.
95
'American Cyanamid v Ethicon [1975] 1 All ER 504 (HL).
608 FIFTY YEARS OF THE SUPREME COURT

It has been stated in the past that where the plaintiff is asserting a
right, he should show a strong prima facie case, at least, in support of
the right which he asserts. Now, however, the test appears to be,
whether there is a serious question to he tried.96
This modified approach seems to have been substantially
reflected in India in the following dicta of the. Supreme Court:
No injunction could be granted under Order XXXIX, rules 1 and 2 of
the Code, unless the plaintiffs establish that they had a prima facie
case, meaning thereby that there was a bona fide contention between
the parties or a serious question to be tried.97
It may also be mentioned that one of the Calcutta cases98 has
discussed at length the effect of the substituted test of 'serious
issue to be tried'.

Trespass to the Person

Trespass has been described as the 'father of tort'. 99 As a genus it
comprises trespass to the person, trespass to moveables and
trespass to land. The last is its purest meaning, because the word
ultimately derives from the Latin trans ('through') and passus
('a pace').
Trespass to the person itself comprises three sub-species,
namely, assault, battery and false imprisonment. These three torts
are also offences, and much of the case-law is drawn from
criminal law situations. Of course, this does not mean that the
rules operating in civil and criminal law are necessarily identical.
So far as tort law goes, much of Indian case-law relates to the
tort of false imprisonment. A person commits false imprison
ment, who does an act which directly imprisons the plaintiff and
intends this result or should have foreseen it. 100
In the Supreme Court of India, acts which constitute false
imprisonment have mostly come up in controversies involving

96
Halsbury's Laws of Enghnd, 4th edn, vol. 24, para 955.
97
United Commercial Bank v Bank of India AIR 1981 SC 1426 at 1440.
9i
Damodar Valley Corporation v Haripada Das AIR 1978 Cal. 489.
"W.H. Roger, supra, note 88 at 130.
100
Balcer, Introduction to Torts (1985) at 27.
 T H E LAW OF TORTS 609

constitutional questions such as the right to life and personal

liberty and questions of compensation that can be claimed for
deprivation of this right. It is proposed to confine the discussion
of this topic to aspects which are directly relevant to the law
of torts.
In India, section 41(1), Code of Criminal Procedure, 1973,
provides that a police officer may arrest a person 'who has been
concerned in any cognizable offence, or against whom a
reasonable complaint has been made or credible information has
been received or a reasonable suspicion exists, of having been so
concerned.'
In the context of this provision, the Supreme Court of India
has laid down strict requirements for making an arrest.101 The
court has said that no arrest can be made because it is lawful for
the police officer to do so. The existence of the power of arrest
is one thing. The justification for the exercise of it, is quite
another.
The court further observed:
No arrest should he made without a reasonable satisfaction, reached
after some investigation as to the genuineness and bona fides of a
complaint and a reasonable belief both as to the person's complicity
and even so, as to the need to effect arrest.... There must be some
reasonable justification, in the opinion of the officer effecting the
arrest, that such arrest is necessary and justified. Except in heinous
offences, an arrest must be avoided if a police officer issues notice to
a person to attend the Station House and not to leave Station without
10'
permission.

Defamation and Malicious Prosecution

The law relating to the tort of defamation in India is mainlv
uncodified law. Elsewhere, this branch of the law of torts has
undergone detailed modification (as a part of law reform).
American law has been revolutionized by the impact of the
Constitution. A similar development has emerged in India
recently.

m
Jq0inder Kumar r State of UP AIR 1994 SC 1349 at 1353.
102
Ibid. at 1354.
610 FIFTY YEARS OF THE SUPREME COURT

Indian case-law on the tort of defamation is not meagre

(though some persons harbour such a misconception). However,
the points that have reached the Supreme Court are not many.
One point which has come up again and again is, that while
'privilege' is recognized by the law for many situations, the basic
facts should be tally reported. As has been often said, 'facts are
sacred, though comment is free'. If the facts on which comments
are made in a newspaper are not accurate, then there is no
protection. 103
Another interesting point dealt with by the Supreme Court
relates to defamation of 'public figures'. To understand the
background it may be convenient to refer to an American
decision, 104 which has held, that statements about public figures
or public officials attract the law of defamation, only if they were
made with knowledge of their falsity or made 'recklessly'.
Media statements about private persons are actionable, only if
the publisher was negligent as to the truth of what the publisher
said. It seems that the American rule as to public figures has
appealed itself to the Supreme Court of India and, in one of its
judgements, it has favoured a similar protection for public
figures.105 The case itself involved many other issues, but it does
contain dicta to the above effect.
The American developments may be a reaction to the tension
between the need for protection of free speech and the need for
protection of reputation of individuals. Defamation stands in a
peculiar category. An interlocutory injunction would amount to
judicial pre-censorship, which is not generally favoured. This
leaves only the remedy of damages. But then, too high a figure
of damages may also act as an indirect curb on the press. At the
same time, to grant to the press total immunity from liabilities for
defamation would mean that the victims of untrue accusations,
published in the press, would have no means of redress. Perhaps,
it is for this reason that a middle path has been struck in the
United States, in this regard.

i03
Sewakmm Sobhsmi v R.K. Kamnjia (1981) 3 SCC 208 at 217.
l04
N.T. Times v Sullivan (1964) 376 US 254; see also Gertz v Robert
Welch (1974) 418 US 323.
l05
Supra, note 94 at 274.
 T H E LAW OF TORTS 611

The Supreme Court of India had occasion in the past 106 to deal
with the extent of protection (from liability for defamation, etc.)
enjoyed by newspapers and others, for publication of parlia
mentary proceedings. However, the position in this regard is now
governed by article 361A of the Constitution, which is a self-
contained and comprehensive provision.

Women and the Law of Torts

The heading 'Women and the law of torts' may sound rather odd.
The common law did not have any species of torts especially
designed to protect women. Archaic actions like the action for
seduction or for criminal conversion, etc., were really intended
to provide compensation to the male under whose tutelage the
woman was.
However, during recent years stress has been laid on the need
to provide redress for wrong done to women and in the light of
this development it seems appropriate to devote attention to
some important pronouncements of the Supreme Court of India.
It is true that these decisions were not rendered in a formal suit
framed as an action in tort. They either arose out of constitutional
litigation or were rendered in the context of compensation orders
under section 357 of the Code of Criminal Procedure, 1973..
Nevertheless, some of the points laid down possess relevance to
the law of torts also.
Section 357 of the Code empowers a convicting court to direct
the convicted person to pay compensation to victims of crime, in
certain cases. The principles of liability as followed in tort actions,
are usually followed under this section also. The Supreme Court
has directed all criminal courts to make liberal use of this
power, 107 (wherever the circumstances so demand).
In another case, 108 the court directed the setting up of a
Criminal Injuries Compensation Board, to award compensation

106
C.K. Daphtary v O.P. Gupta AIR 1971 SC 1132; Dr.Jagdish Chandra
Ghosh v Hari Sudan AIR 1961 SC 613.
m
Hari Krishan and State ofHaryana v Sukhbir Singh AIR 1988 SC
2127 at 2131.
l0S
Delhi Domestic Working Women's Forum v Union of India (1995) 1
SCC 14.
612 FIFTY YEARS OF THE SUPREME COURT

to victims of rape, irrespective of whether or not a conviction has

taken place. In awarding compensation, the board has to take into
account the following factors concerning the victim, namely, pain,
suffering, and shock; loss of earnings due to pregnancy; expenses
of delivery of the child, where such pregnancy is caused by rape.
In another cases, 109 the Supreme Court allowed interim
compensation of Rs 1000 per month to be paid by the accused
to the victim of rape during pendency of the proceedings. The
order was passed under article 142 of the Constitution.
There is also a case of homicide, 110 in which the accused was
convicted under section 304, Part II Indian Penal Code, 1860. H e
had been sentenced to rigorous imprisonment for five years and
fine of Rs 3,000. The court reduced the imprisonment to the
period already undergone but enhanced the fine to Rs 1,00,000
and further directed that the amount be paid as compensation to
the widow and minor daughter of the deceased. Similar order was
passed in another case,111 where abortion practised in a negligent
manner by a homoeopath led to a woman's death.
Finally, in a judgement, 112 which has received widespread
attention and which demands countrywide implementation, the
Supreme Court has issued detailed guidelines addressed to the
problem of sexual harassment at the workplace.

Torts Affecting Immoveable Property

Torts affecting immoveable property are generally classified into
(a) direct interference with possessionusually by entry; (b)
physical damage to the property (e.g. waste); and (c) interference
with the enjoyment of property (e.g. nuisance).
At this place, it is proposed to confine the discussion to
unlawful entry. The foundation of this kind of trespass is the
doing of an illegal act against the property of another so as to
interfere with his possession. Usually, the remedy sought is not
merely damages, but also recovery of possession. This part of the

lm
Bodhisatva Gautam v Subhra Chakrabarty AIR 1996 SC 922.
u0
Venkatesh v State of Tamil Nadu AIR 1993 SC 1230.
11
Jacob George v State of Kerala (1994) 3 SCC 430.
ul
Visbaka v State of Rajasthan AIR 1997 SC 3011.
 T H E LAW OF TORTS 613

law is mainly dealt with in the SRA. Under that Act a person in
possession of immoveable property, if dispossessed, is entitled to
recover his possession: on the strength of his title (section 5, of
the Act); or even without the proof of title, on the strength of his
prior peaceful possession (section 6). 1 1 3
While possession is not yet lost, the person in possession can
exercise the right of self-defence (under the head of defence of
property, under sections 96-106 of the IPC), provided the person
committing trespass by the act of dispossession is thereby guilty
of an offence (sections 441-6 IPC). Third party's title (Jus tertii)
is no defence.114
As regards the remedy given by section 6 of the SRA, it is well
settled that even a tenant whose tenancy has come to an end, if
forcibly evicted can sue his landlord for possession. However,
right to expel a trespasser cannot be exercised, once the trespasser
has acquired possession. 115
Apart from seeking restoration of possession, the plaintiff who
has been wrongfully dispossessed would like to recover damages,
for the period during which he had been dispossessed. The Indian
statute law has given its own name to the amount that can be so
claimed, namely, 'mesne profits (see section 2(12), Code of Civil
Procedure, 1908). As regards the quantum that can be recovered,
the plaintiff can recover the profits which the defendant actually
received or might have received with ordinary diligence (together
with the interest thereon), but not the value of improvements
made by the defendants. 116
In India, the law of torts and the law of easements are often
dealt with together. Easements are not concerned with possession
but with the enjoyment of immoveable property. It becomes
appurtenant to land by some specific method of acquisition (and
is not a natural right). Infringement of an easementary right may
justify a suit for injunction, or damages, or both. 117 In England,

n3
Somnath Berman v Dr. S.P. Raju AIR 1970 SC 846.
n
*Teshwant Singh v Jagdish Singh AIR 1968 SC 620.
ns
Krishna Ram MahaU v Shoba Venkata Rao AIR 1989 SC 2097 at
2100.
U6
Fateh Chtmd v Balkrishan Dass AIR 1963 SC 1405; Mahant Narayan
Dassji v Tmipathi Depasthanam AIR 1965 SC 1231.
u
*Supra, note 10 at 1885.
614 FIFTY YEARS OF THE SUPREME COURT

the action has been compared to an action for nuisance as the

person seeking relief (i.e. owner of the dominant tenc-ment), is
not in possession of the servient tenement." 8
In India an easement may arise from: prescription (as per
statute) or express grant or implied grant, which can be evidenced
by immemorial user or custom." 9
The interesting topic of profits a prendre has also come up
before the Supreme Court of India, 120 which has pointed out that
in Indian law, they are regarded as easements.

Torts Affecting Tangible Moveable Property

Torts affecting tangible moveable property are usually taken to
comprise: trespass to goods; conversion; detinue.
Of these, trespass is primarily a wrong focusing on the element
of possession, while conversion focuses attention on the protection
of title. Indian case-law on trespass to goods is scanty. But
conversion happens to have been dealt with by the Supreme Court,
which has approved the following definition given by Salmond.
Conversion is an act of wilful interference without lawful justification,
with any chattel in a manner inconsistent with the right of another,
whereby that other is deprived of the use and possession of it.'21
The action for detinue (detention) is based on a wrongful
detention of the plaintiff's chattel, by the defendant, evidenced bv
a refusal to deliver the chattel upon demand. The redress claimed
could be recovery of the chattel and incidental damages. 122
Many cases of conversion or detention would involve a
consideration of the circumstances in which possession of the
moveable property was acquired by the wrongdoer, thus involving
a consideration of the law of bailment (i.e. section 151 and
succeeding sections, of the Indian Contract Act, 1872). If
damages are claimed in an action of detinue the value of the

ns
Paine & Co. v St. Neots Gas Co. [1939] 3 All ER 812 at 823.
U9
State of Bihar v Subodh Gopal Bose AIR 1968 SC 281; P. Rudrayya i
V. Venkayya AIR 1961 SC 1821.
120
Ibid.
ul
Dhian Singh v Onion of India AIR 1958 SC 274 at 278.
122
Ibid.
 T H E LAW OF TORTS 615

goods that can be claimed (in the event of non-return) is the value
as on the date of judgement. 123

Deceit
In order to sustain an action of deceit, there must be proof of
fraud and nothing short of that will suffice.124 Non-disclosure,
when there is no duty to speak, is not fraud.125
Deceit (fraud) as a tort has not figured in any judgement of the
Supreme Court of India, so far. But it would be of interest to refer
to one of its judgements, 126 which arose out of a writ petition. A
candidate for admission to an examination had not mentioned (in
his application form) that he was short of attendance. The
deficiency was not detected at that time. But it was detected later
and his result was withdrawn. The student filed a writ petition
against the University, which resisted it on the ground that the
student had been guilty of fraud. The Supreme Court rejected this
plea and directed the University to publish the result.

Nuisance And Environmental Torts

Nuisances are divided into public nuisances and private nuisances.
The former is an offence, but is also actionable as a tort on proof
of special damage. The latter is essentially a tort. Winfield defines
private nuisance as 'unlawful interference with a person's use or
enjoyment of land or some right over or in connection with it5.127
There is abundant case-law of the high courts in India relating to
private nuisance as a tort and there is found, in some of the
judgements, quite a lucid exposition of the law and elaborate
review of Indian case-law.128

Ui
Rosenthal v Alderton and Sons Lid (1946) 1 KB 374.
n
*Derry v Peek (1889) 14 App Cas 337 at 374, 375, 370.
U5
Ward v Hobbs (1878) 4 App Cas 13 at 26.
y26
Sri Krishna v Kurukshetra University AIR 1976 SC 376.
127
Winfield and Jolowicz, Tort, 12th edn, page 380 relied on in
Bhanwarlal v Dhahraj AIR 1973 Raj 212 at 216; Ushahen v Bhagya
Laxmi Chitra Mandir AIR 1978 Guj 13.
ni
Janki Prasad v Karamat Husain (1931) ILR 53 All 836; Dhannalal
v Chittar Singh AIR 1959 MP 240 at 243; Ram Lai v Mustafabad O &
CG Factory AIR 1968 Punj 399 at 402.
616 FIFTY YEARS OF THE SUPREME COURT

Litigation concerning private nuisances does not seem to have

reached the Supreme Court, so far. But public nuisances happen
to have occupied the attention of the courtnot necessarily in the
context of tort law, but in the context of statutory provisions, such
as, section 133 of the Code of Criminal Procedure, 1973, which
provides for the grant of injunctive relief by the competent
magistrates.
Besides this, public interest litigation in the field of environ
mental law has led to the emergence of fairly profuse case-law. It
is not possible in the present study to offer a detailed discussion
of the case-law on the subject. But it may be convenient to
mention that (apart from constitutional cases), the vast corpus of
environmental legislation in India presents tempting material for
analysis. While an elaborate analysis cannot be set out here, it
may be desirable to draw attention to certain important aspects
of the statutory framework in India.
(a) Environmental legislation in India consists of (i) 'general
lawssuch as the Indian Penal Code (Chapter on Public
Nuisance), and the Code of Criminal Procedure, 1973
(section 133); and (ii) special enactments (see (b) below).
(b) The special enactments comprise not only legislation relating
to water pollution and air pollution, but also the compre
hensive Environmental Protection Act, 1986. It also includes
the Public Liability Insurance Act, 1991, and the enactments
creating special tribunals and appellate authorities.
(c) While some of these enactments create substantive legal
provisions of their own (usually enforced by administrative
or penal sanctions) a few create special judicial machinery,
which is empowered, inter alia, to deal with public
and private claims for compensation for environmental
injuries. 130
Apart from the legislative developments mentioned above, one
has also to make a note of the fact that ultra-hazardous activities
can now result in civil liability to pay damages, which would be

U9
Ratlam Municipality v Vardhi Chand AIR 1980 SC 1622.
l30
See EM. Bakshi, Procedural Options in Environmental Law Indian
Law Institute (1993).
 THK LAW OF TORTS 617

imposed on the basis of absolute liability and on the principle of

'polluter pays'. 131

Negligence
Negligence as a tort is a complex concept. As was observed by
Lord Wright, "in strict legal analysis, negligence means more than
heedless or careless conduct, whether in omission or commission.
It properly connotes the complex concept of duty, breach of duty
and damage thereby suffered by the person to whom the duty was
owing 1 . 132
The component of 'duty1 itself implies that there is a person
who owes the duty and that there is another person to whom the
duty is owed. Illustrative of this is a Supreme Court judge
ment, 133 in which, as a result of the collapse of the Clock Tower
situated opposite the Town Hall in Chandni Chowk, Delhi, a
number of persons were killed. The Clock Tower belonged to,
and was controlled, by the Municipal Corporation of Delhi. It
was held that the Corporation was under a duty to take care. As
regards want of care, that was established on the basis of the
doctrine of res ipsa loquitur. ' .
To whom is the duty owed? The answer isto all persons
generally. (This is implicit in the very concept of tort.) Here
again, one can take a Supreme Court case,13 by way of illus
tration (even though it relates to a criminal prosecution). In a
prosecution against the appellant under section 304 IPC, for
causing the death of a visitor, by fixing naked and charged electric
wires, the defence was taken that the visitor was a trespasser. The
plea was rejected. The court held that though the occupier is not
bound to take reasonable care to protect trespassers, he cannot set
up a naked wire

(a) with the deliberate intention of causing harm to the

trespasser, or
(b) in reckless disregard of the presence of trespassers.
131
Cf. Indian Council for Enviro-Legal Action v Union of India AIR 1996
SC 1446, reaffirming the law laid down in M.C. Mehta, supra, note 1.
u2
Lockgelly Iron & Coal Co. v McMullan (1934) ACI (HL).
ui
Municipal Corporation of Delhi v Subhagwanti AIR 1966 SC 1750.
li
*Cherubin v State of Bihar AIR 1964 SC 205.
618 FIFTY YEARS OF THE SUPREME COURT

Assuming that there is a duty to take care, the next question is:
in what circumstances can the duty be said to have been broken?
Subject to certain important exceptions the general rule is that a
person must take reasonable care to avoid acts or omissions which,
he can reasonably foresee, would be likely to injure his 'neighbour'.
The standard of care is vividly illustrated by a bunch of
judgements 135 relating to medical personnel; and the proposition
that emerges is thisA medical practitioner, when consulted by a
patient, owes to the patient die following duties:
(a) A duty of care, in deciding whether to undertake the case.
(b) A duty of care, in deciding what treatment to give.
(c) A duty of care in administering the treatment.
His duty is to bring to his task a reasonable degree of skill and
knowledge and to exercise a reasonable degree of care. The fact that
medical practitioners are subject to the disciplinary control of the
Medical Council, does not affect this common-law duty of care.137
Contributory negligence is also often discussed in the context
of negligence. However, there is no contributory negligence,
where the act of the victim, alleged to constitute contributory
negligence, is itself the result of a damage created by the tort
feasor himself.138
The practical question that arises is this: How does one prove
negligence? Here the doctrine of res ipsa loquitur often comes to
the assistance of the plaintiff. And one finds in judgements of the
Supreme Court, several illustrations of the relevance of this
doctrine. 139 For example, where a canal was in the management
of the state of Punjab and, because of its negligence, a breach
occurred in the canal, flooding the lands of the plaintiff (a
cultivator), it was held that res ipsa loquitur applied and the breach
itself was prima facie proof of negligence.

i35
A.H. Khodwa v State of Maharashtra (1996) ACJ 505 (SC);
Narasimha Rao v Jayaprakash AIR 1990 AP 207.
l36
Supra, note 14.
m
IMA v VP. Santha AIR 1996 SC 550.
iis
Shyam Sunder v State of Rajasthan AIR 1974 SC 890.
119
Supra, note 133 at 1752; Basthi Kasim Saheb v Mysore SRT.
Corporation AIR 1991 SC 487.
H
htate of Punjab v Modern Cultivators (1964) 2 SCJ 796.
 T H E LAW OF TORTS 619

Non-Exercise of Statutory Powers

At this stage, a reference should also be made to a very recent
development relevant to tort law. The Supreme Court has held 141
that where a statutory power is conferred on the government to
take certain action against operations which are inherently
dangerous or operations against which the public cannot protect
itself, the non-exercise of that power by the government may
entail liability to pay compensation to a person injured by non-
exercise of the statutory power.
Accordingly, the court held the central government liable to
pay compensation for an accident caused by an unmanned level
crossing, which was (in the circumstances of the case) found to
be highly dangerous. (In this case, the relevant power had been
conferred on the central government by section 13, Railways
Act, 1890.)

Conclusion
In the light of this brief survey of Supreme Court rulings on tort,
some brief observations may be made as to the general approach
of the court.
The first aspect that strikes one is the fact that not every
species of tort is represented in the case-law. Accidents of
litigation seem to account for this. Secondly, in respect of such
cases as have reached the Supreme Court, the court has usually
shown a bold and progressive approach, realizing that a person
suffering an injury expects compensation by the wrongdoer.
Thirdly, in some cases, constitutional provisions dominate the
scene, so that traditional principles of tort law recede into the
background. If one may resort to a metaphor, constitutional law,
as the big brother, leads its younger brother step-by-step,
sometimes striking a new path, at other times marking a halting
approach, but always overshadowing the younger brother. Finally,
one may be permitted to observe, that in regard to a controversy
which begins in the Supreme Court itself (as in public interest
litigation or in other writ petitions) an important juristic problem
arises. The court is deprived of the benefit of detailed arguments

Union of India v United India Insurance Co. (1997) 8 SCC 683.

620 FIFTY YEARS OF THE SUPREME COURT

which are addressed in the high courta benefit always available

in a matter coming on appeal in the Supreme Court. This is no
reflection on the Supreme Court bar. It is a situational handicap.
The cut and thrust witnessed in the trial court would be missing.
The local flavour gets lost. Abstract questions of law come to the
centre but the facts lose the lime light. Much of tort law is 'fact
based'. Fact and law are inextricable from each other. In tort law,
it is facts that give a colour to legal proposition, sometimes
accentuating a particular hue, at other times subduing another
hue, and thus offering a rich kaleidoscope of facts. This richness
tends to lose its glow, when the matter has not been subjected to
debate in some lower court.