15 law of torts - 14.139.60.116:8080

15 LAW OF TORTS

P. M. Bakshi*

THIS SURVEY deals with the important cases on the law of torts reported during the year 1980. In addition, a few judicial decisions reported during the year 1979 relating to the law of torts have also been dealt with, where the points discussed or decided in those cases seemed to lend significance to some of the points in issue in the cases reported during the year 1980 or otherwise requiring notice as illustrating current trends in the law of torts.

I PRELIMINARY OBSERVA1 IONS

In contrast with the number of decisions relating to, say, criminal law and procedure, the number of cases relating to tort is usually small. The paucity of tort litigation in India has often been commented upon. Several factors have been put forth as explaining this paucity, such as the defect of the institutional set-up of our legal system which fails to encourage the pursuit of remedies of a civil nature for reducing inter-personal tensions in the community; the super-technical approach of judges and lawyers, adopted without reckoning the growing needs of the awakened society } the tendency noticed in the Eastern society of preferring the process of mediation to the judicial process ;2 and the time, labour and money expended at every stage on litigation, particularly the prohibitive cost of a law suit and—a factor which has been already documented—the delays attendant on litigation. 3 To these factors, one may add the unsatisfactory condition of the substantive law on certain topics of the field of torts (for example, the liability of the state), the anomaly created by the co-cxistencc of several statutory provisions applicable to a situation, creating confusion in the minds of prospective litigants,4 and so on. One must also take into account the fact that legal awareness stands at a rather low level amongst the general public in India. Even where the law is in a statutory

* Formerly Member-Secretary, Law Commission of Ttidia. 1 D.C. &inde, 'Law of Torts', XV A.S.I L. 189, 194^979). » Northrop, The Taming of Nations, ch. VII (1954). 3 See R. Ramamoorthy, 'Difficulties of Tort Litigants in India*, 12 JI L.L 312. (1970), « For e.^., the Fata! Accidents Act, 1855 ; the Motor Vehicles Act, 1939,

www.ili.ac.in The Indian Law Institute

340 Annual Survey of Indian Law [1980

form, it is not easy of access. Moreover, a pretty large portion of the law of torts remains uncodified in India—as in most commonwealth countries. Somehow, the movement for codification that began with the Anglo-Indian Codes could not touch the field of torts. The basis of the law of torts is the common law which (as case law is, by its very nature), opposed to the idea of codification.5 A central feature of codification is the abrogation of case law. And such abrogation might, perhaps, go against the very spirit of the law of torts. In any case, the fact that the law of torts is uncodified tempts one to offer a hypothesis for the paucity of litigation in that field. Could it be that the Indian legal mind, well-attuned to the pursuit of an appropriate remedy where the law is codified, does not find it equally comfortable to take legal proceedings where the law is not codified? Of course, the fact that not many cases are reported under the rubric of "tort" does not necessarily mean that the legal wrong goes unremedied in every case. There are special enactments affording relief for wrongful harm occasioned in certain special activities. Enactments relating to aircraft, motor vehicles, railways and workmen's compensation are familiar examples of such enactments. Litigation falling under these enactments naturally does not find itself labelled as falling under "tort".

Bureaucratic attitude towards legitimate claims of citizens

The complaint is often voiced that in modern times the government is, for no particular reason, often indifferent to the legitimate claims of citizens, even though the claims are legally enforceable. This complaint is not untrue of India. One finds from the reported decisions of 1980 that the complaint is well-founded. The state, as a defendant, often behaves in a manner unworthy of a responsible litigant. Where the question is of recovering the demands of the state against a citizen, one finds its machinery over-enthusiastic to a fault. But the same zeal is not to be found in the response of the state where a citizen makes a claim against it. In this context, it would be appropriate to draw attention to a case from Haryana6 which, although already noted in the last year's survey,7 can bear repetition from the angle just now mentioned. This was an appeal by the State of Haryana, in which the state demanded from the dependants of the victim of an automobile accident court fee for their claim for compensation under the Motor Vehicles Act, 1939. It is obvious that the litigation must have cost the state much more than the amount of court fee due. The case was an illustration of zeal—one can even say, misplaced zeal—for the recovery of amounts due to the state. However, where the state has to face litigation pursued honestly by a

5 Cf. Maillet, 'The Historical Significance of French Codification', 44 Tulane Law Review681 (1970).

6 State of Haryana v Darshana Devi., A.I.R. 1979 S.C. 855. 7 Mohammad Ghouse, 'Constitutional Law~F XVA.S.I.L. 406 (1979),


Vol. XVI] Law of Torts 341

well-intentioned citizen on the basis of a claim which is prima facie well-founded, one finds that the government does not respond with a similar zeal or sincerity. Untenable defences are, at times, put forth by the state. Those reported cases of 1980 that8 justify such a criticism need not be enumerated in these prefatory observations. The facts of those cases will be found in the discussion of each case under the appropriate heading in the ensuing paragraphs of this survey where this aspect of the matter has also been touched upon. The point that requires to be emphasised at this place is that in India a big slice of litigation is now conducted either by the state or against the state, and the cause of social justice will be better served if the legal claims of citizens are handled by the state authorities with greater promptness and understanding than is manifest from the case law. It should not be overlooked that a citizen who has to pursue a claim against the state suffers from a fairly large number of handicaps or disadvantages. His financial sources are limited. It is after sacrificing a great deal of his time and energy that he can pursue the proceedings actively in court. As to the quality of legal advice available to a private litigant of average means, it cannot match the professional advice available to the government. In the actual conduct of litigation— and even at pre-litigation stages—the state enjoys a nnmber of special privileges, e.g., the privilege of demanding the statutory notice.9 In view of all these handicaps suffered by a private litigant, as against the government, he should not be made to undergo the additional suffering caused by an unsympathetic attitude of the bureaucracy. Because of the importance of the subject in modern times, and the recurring frequency with which courts have been compelled to make comments about bureaucratic apathy or unhelpfulness, it has been considered in the present survey to highlight the matter under a specific heading.10

With these preliminary observations, the survey will proceed to analyse some of the important decisions of the year concerning the law of torts. Broadly speaking, the scheme adopted in the survey is as under: General principles of tortious liability will be taken up first—including the liability of government and the topic of survival of causes of action. This will be followed by a consideration of specific torts. Case law relating to remedies in tort-this year we have cases only on damages—will then be dealt with. Some cases illustrating the bureaucratic attitude towards the claims of citizens (under liability in tort) will then be mentioned. Towards the end, a few remarks by way of conclusion will be offered.

In arranging the topics, contributory negligence presents some difficulty. This is a topic of a hybrid character and its precise status in

8 For one example, see Agya Kaur v. General Manager, A.I.R. 1980 P. & H. 183. » S. 80, Code of Civil Procedure, 1908. See Law Commission of India, 27th Report

21-23 (1964); 54th Report 56 (1973). io See 'Bureaucratic attitude', infra.



relation to the law of torts is a matter of interest, because it can be viewed from a variety of angles. If one has in mind the orthodox common law rule as to the effect of contributory negligence, then it can be viewed as constituting a defence to tortious liability, and can, therefore, be appropriately dealt with under the topic of general defences to liability in tort. If not a defence to all torts, it is at least a defence to the specific tort of negligence. In the alternative, one could view it as a factor that modifies, or defines the scope and limitations of, the specific tort of negligence. If, on the other hand, contributory negligence is treated only as a factor to be taken into account merely in the arithmetical apportionment of liability—as is the modern trend—then it has to be viewed as concerned not so much with liability for wrong as with the quantification of such liability, thereby bringing it very near to the topic of damages and their apportionment, and taking it far away from a discussion of liability proper. So viewed, then, contributory negligence would be concerned not with the existence and non-existence of tortious liability, but with details of the remedies for tortious liability and the quantification of the remedy of damages. In order words, it would be concerned not with the question "whether or not there is wrong doing", but with a very different question—"To what extent each person involved in the event entitled to recover 7" This may sound elementary, but the point of adverting to it here is to demonstrate the different heads under which a discussion of contributory negligence and a survey of cases relevant to it can be possibly placed. In the present survey, a pragmatic approach has been adopted in this regard, and case law involving questions of contributory negligence has been dealt with in juxtaposition to case law relating to the tort of negligence. Such a course has the advantage of practical convenience.

II GENERAL PRINCIPLES OF LIABILITY IN TORT

As to case law concerning matters relating to the general principles of liability in tort, one can, this year, begin conveniently with liability of one person for the acts of another—commonly known as vicarious liability.

Vicarious liability

It is well known that the subject of the vicarious liability of the master for the tort of the servant is one in which the principles are easy to state, but their application to the facts of a particular case is not so easy. Broadly stated, the principle is that the master is liable where the alleged tortious act of the servant falls within the "scope of employment". Difficulty usually arises where the act of the servant for which the master is sought to be made liable in tort is one which was not expressly authorised by the master. Can the act be regarded as falling within the scope of employment in the particular case? Decision of this question often presents



difficulty. In a Madras case,11 the vehicle in question was a goods vehicle (tempo), meant exclusively for carrying goods and there was a statutory prohibition against carrying passengers except in connection with the carriage of the goods themselves. The driver of the tempo, in violation of the statutory prohibition and without the express permission of the master (owner of the tempo) permitted the deceased to travel in the tempo. The question arose whether the owner was vicariously liable for the death of the deceased which, it was alleged, had been caused by the rash and negligent driving of the tempo. The High Court held that even if the accident occurred as a result of the rash and negligent driving of the tempo, the owner could not be held liable in the circumstances, the act not falling within the scope of employment. The only person who was liable was the driver who had committed the tort.

The Kerala High Court had occasion to deal with vicarious liability for injuries which the claimant had sustained in an accident caused by a vehicle. It pointed out12 that liability for a tort committed by one person can be cast on another person only if the latter were in any way responsible for the accident that occasioned the injury complained of as tort. In other words, there is no scope for any absolute liability on the vehicle to compensate the person injured. The Motor Vehicles Act, it was held, does not contain any statutory provision to that effect. The Act does not provide a new right or a new remedy to a person injured by an accident. The Act does not, in any way, interfere with the substantive common law on the subject. It follows that a claimant has to prove that the opposite party used the vehicle in a negligent way and occasioned the injury for which compensation is claimed. The motor car and absoluteliabi lity

Curiously, notwithstanding the fact that the motor car has been with us for more than half a century, arguments are even now advanced that it is a "dangerous object". As late as 1981, a similar contention was repeated before the High Court of Punjab and Haryana which, of course, did not accept it. The court held that the rule of absolute liability cannot possibly be attracted to the case of an ordinary work-a-day chattel like a motor vehicle. Whatever may have been the position of the law a century earlier, it cannot today be held that a motor vehicle is so inherently dangerous and hazardous that even its entrustment to another for repairs would attract the absolute rule of liability at the owner's peril.13

Ill GOVERNMENT LIABILITY IN TORT

The question of government liability in tort comes again and again

" P. M, Rafagopalan v. Mohan, (1979) 2 M.L.J. 460. 12 K. A. Kurup v. P. Sukumaran Nair, (1980) K. L. T. 750. 13 Devinder Singh v. Mangal Singh, A i.R. 1981 P. & H. 53. (relying on Govindarajuh V,

Govindaraja, A.LR. 1966 Mad. 332).



before the courts. In view of the ruling decisions of the Supreme Court on the subject,14 courts have no alternative but to go on deciding the question whether government is or is not liable for a particular act of its functionary by applying a criterion based on distinction between "sovereign" and "non-sovereign" activities. If the activity falls in the sphere of "sovereign functions", the government is not liable. That this criterion is very unsatisfactory and unjust has often been pointed out. In fact, a modest reform of the law on the subject was recommended long ago by the law Commission of India.15 But the Report has not yet been implemented. In the meantime, the criterion mentioned above continues to hold the field.

However, there is a redeeming feature which is found in recent decisions. While adhering to the criterion mentioned above, courts have been adopting a liberal approach in the matter. More and more functions are now being brought within the fold of "non-sovereign functions", thus expanding the sphere of governmental liability. The trend was perhaps encouraged by a decision of the Supreme Court.16

That the courts are inclined to narrow down the scope of "sovereign" functions and, consequentially, to widen the scope of governmental liability in tort, will be well appreciated if one takes a look at decisions before the year under review and then at subsequent rulings. One could begin with a Madhya Pradesh case.17

In that case, a military truck, while it was going for bringing vegetables for prisoners of war, caused injury. The driver of the military truck having been negligent, the question arose whether the Union of India was to be held liable for the tort of its servant. Answering the question in the affirmative, the High Court held that where the work in question can be and is, undertaken by private individuals, there is nothing peculiar about it to be called a "sovereign activity". The Union of india could not, therefore, be absolved from liability.

In a Jammu and Kashmir case18 which has already been noted in the survey for the last year,19 the driver of a military vehicle was driving to the railway station for bringing jawans of the army from the station to the unit headquarters. Because of his rash and negligent driving, he dashed against a tempo from behind and injured its occupants. The Union of India was sued for compensation as the employer of the negligent driver, but denied its liability on the ground that the driver was, at the material

** See Alice Jacob, 'Vicarious liability of Government in Tort", 7 J J.L.I. 246 (1965). 15 Law Commission of India, 1st Report (Liability of the State in Tort) (1956). 16 Shyam Sunder v. State of Rajasthan, A.I.R. 1974 S.C. 890. 17 Unionof India v. Neelam Dayaram, 1979 M.P.L.J. 732. Cf. Iqbal Kaur v. Chief of

Army Staff, A.I.R. 1978 All. 417. is Union of India v. Savita Sharma, A.I.R. 1979 J. & K. 6. 19 M.P. Jain, 'Administrative Law', XV A.S.I.L. 357 (1979).



time, performing a "statutory'' duty in exercise of sovereign powers delegated to him by the competent authority. The contention was negatived by the High Court of Jammu and Kashmir, holding that the statutory duty being performed by the driver could not be said to be referable to the exercise of the delegated sovereign powers. The jawans could have been transported in a private bus or truck, in any other vehicle. The act of their transportation from one place to another in the ultimate analysis could be performed by private individuals also in their vehicles. This act could be regarded as an act in exercise of sovereign powers only if it could be shown that it could not have been performed by private individuals. The performance of only such acts could be said to be in exercise of the sovereign powers or delegated sovereign powers which could not, under the statute, be performed by any individual other than the person who allegedly performed the same.

Fortunately, this liberal approach of the courts in interpretation of "non-sovereign functions" has continued uptodate. By way of illustrating the latest trend, one can even cite a decision of 1981 exhibiting the same approach.20 It was held that the transporting of a patient to the hospital can be done as much by private individuals as by the State. The fact that it was done in a fire service ambulance van for carrying an injured victim to the government hospital does not make it a "sovereign" function.21

This case is cited here to show that while maintaining the theoretical distinction between "non-sovereign" and "sovereign" functions, the courts are applying the law in such a manner that the distinction will lose its practical importance. Let us hope that day is not very far.

IV THE SURVIVAL OF CAUSES OF ACTION IN TORT

The effect of death on the survival of a cause of action in tort is an interesting matter. The point arose in Theilammal v. A. V. Mallana Pillai.22 For appreciating the decision it is desirable to give a brief theoretical background of the subject. The common law doctrine actio personalis moritur cum persona (a personal action dies with the person) has, to a large extent, been modified by statutory provisions. General statutory provisions providing for the survival, on death, of causes of action are to be found in (i) section 306 of the Indian Succession Act, 1925 and (//) the Legal Representatives Suits Act, 1855. Besides these, there are special provisions meant for the survival of specified causes of action. Thus, in regard to liability for an accident resulting from the use of a motor vehicle, section 11 (M (b) of the Motor Vehicles Act introduces another modification in the common law doctrine by allowing a cause of action for death

20 State of Tamil Nadu v. M. N. Shamsudeen, (1981) 1 M . L . J . 17. 21 Contrast Madhya Pradesh v. Chironji Lai, A.I.R. 1981 M.P. 65 (case of lathi charge). 22 (1980)2M.LJ. 2666.



to survive, if the death was caused by an accident resulting from the use of a motor vehicle. However, section 110-̂ 4 (b) does not specifically deal with the case of an injury not causing death. In the instant case a person who had met with an accident caused by the use of a motor vehicle suffered an injury and filed an application for compensation for the injury before the motor accidents claims tribunal constituted under the Motor Vehicles Act. The amount claimed was made up of the following items :

(a) expenses of transport from the place of occurrence of the accident to the hospital;

(b) damage caused to the clothing and cycle of the victim; (c) medical expenses necessitated by the accident; (d) cost of extra nourishment required by the victim in consequence

of the accident; (e) compensation for pain and suffering; (/) compensation for continuing personal permanent disability; and (g) loss of earning power.

While the claim was pending, the victim (claimant) died and his wife, son and daughters made an application before the tribunal for being brought on the record as his legal representatives. The tribunal dismissed the application on the ground that the cause of action did not survive to the legal representative, the case being one of a claim of injury and not of a claim for death. On a revision filed by the legal representative, the Madras High Court set aside the order of the tribunal. It was held that the claim for damages, at least in so far as it included damage to property (the victim's cycle) was a claim for damage to the estate of the deceased, and must survive. Further, it was held, the claim for actual expenses incurred by the deceased also survived, since that amount, if it had not been spent by the deceased, might have been available to his legal representatives as the estate of the deceased. The court held that the petitioners should have been brought on the record, since the other claims which could survive to the petitioners were also made. Even in respect of the last two items, it was open to the tribunal to consider the question with reference to the law as settled at that time and to give a decision on the merits. In this particular case, justice was done by reason of the liberal approach adopted by the court. But the case illustrates how a deficiency of the law on a particular subject might thwart the effective operation of legislation enacted with the best of intentions and with high hopes. Because of a controversy relating to the precise scope and meaning of a statutory provision, considerable judicial time was wasted in the discussion of procedural and allied issues—time which could have been much better utilised in the disposal of matters of substance.

Incidentally, the law relating to the survival of causes of action in India is in need of reform in point of substance as also in point of form.



As regards matters of substance, it is high time that in section 306 of the Indian Succession Act the provion for non-survival of a cause of action for personal injury not causing death was removed as out of date. By retaining this provision, we are indirectly perpetuating the obnoxious common law maxim of actio personalis which is not only unjust in principle and in its practical consequences, but is most probably the result of some misconception rather than a logical outcome of any recognised principle of the common law.

V SPECIFIC TORTS : MALICIOUS PROSECUTION

To proceed now to specific torts, we may begin with malicious prosecution. A number of instances of suits for malicious prosecution are met with in Indian case law, but litigants often forget that the requirements of liability for malicious prosecution are very stringent. The distinction between an unfounded prosecution or an ill-advised prosecution on the one hand and a malicious prosecution on the other hand is often overlooked. This is surprising, inasmuch as ^both in England and in India the ingredients of this tort have very definitely stated in text books and in case law. The essentials of the tort of maiicious prosecution have been enunciated from time to time in several judicial decisions.23 The Patna High Court in State of Bihar v Rameshwar Prasad Baidy a,2* had recently an opportunity of re-iterating those ingredients. In order to succeed in an action for malicious prosecution, four conditions have to be fulfilled, namely, (i) that the proceedings must have been instituted or continued by the defendant; (ii) that he must have acted without reasonable and probable cause; (Hi) that he must have acted maliciously; and (iv) that the proceedings must have terminated in favour of the plaintiff now suing.

One of the essential ingredients of liability for malicious prosecution is an improper motive, legally described as "malice". The mere fact that the plaintiff had been acquitted or discharged in the earlier prosecution is not enough. The principle finds illustration in Bhogilal Vithaldas Sanghani v. Dr. Sarojabahen Dhirajlal Rampura25 a Gujarat case. Though already noted in the last year's survey,2* it is worth noting in the context of the present discussion. The owner of a house agreed to sell it for a certain sum, a part of which was taken as an earnest. While entering into the agreement, the owner did not disclose the fact that the house was burdened with mortgages and that suits on those mortgages were pending. On the contrary, he made a positive misleading statement that the title to the house was clear and that there was no mortgage debt outstanding. On

23 Fridman, 'Compensation of the Innocent/ 26 Modern Law Rev. 481 (1963). ■* A.I.R. 1980 Pat. 267. as A.I.R. 1979 Guj.20O. »6 Supra note 1 at 180, 181.



discovering that the house had been mortgaged, the intending purchaser, alleging that he had been cheated, filed a criminal case for cheating against the owner. The criminal case ultimately ended in discharge of the owner, who thereupon filed a suit for malicious prosecution against the puchaser. It was held that the act of the purchaser in instituting criminal proceedings for cheating was not malicious, and for that reason the suit by the owner was not maintainable. The purchaser had filed the prosecution under the bona fide belief that he had been cheated and made to part with the earnest money. Hence there was no malice on his part. The fact that the owner had been discharged was immaterial. Further, for establishing malice, it was not open to the owner to contend that the purchaser should have been careful at the time of the agreement and could have immediately detected the existing mortgages by inspecting the registers maintained in the registrar's office.

The above case thus illustrates the importance of proof of "malice" in the context of the tort of malicious prosecution. Another ingredient of the tort is the absence of "reasonable and probable cause" for the prosecution.

As to the requirement of absence of reasonable and probable cause in an action for malicious prosecution, the onus of establishing the absence of "reasonable and probable" cause for the prosecution which is the basis of the civil action lies, in the first instance, on the plaintiff. This has been laid down in Sachindra Nath Bhanja Chowdhury v Labanglata Sarkar.27

The mere fact that the plaintiff was acquitted is not enough to raise a presumption of absence of reasonable and probable cause. The plaintiff must prove such absence as well as malice, on the part of the defendant. If he does not discharge this burden, the suit must fail. The finding of innocence in the criminal case is not conclusive in such a case. The Calcutta High Court dissented from certain rulings28 of the High Courts of Patna and Orissa which had taken a contrary view on the subject.

For an action for malicious prosecution to succeed, the prosecution must have terminated in favour of the person suing for it. This requirement of the tort is well-recognised. But what precisely is meant by "termination in favour" of the plaintiff could be a matter of debate. This is for the reason that the law of criminal procedure does not confine the modes of termination to the two simple ones of acquittal and conviction. There are many special modes of disposal recognised by that law, some of which can be resorted to without a full trial on the merits. In State of Bihar v. Rameshwar Prasad Baidya29 it has been held that it is not necessary that such a termination should come only at the final stage of the case by recording an order of acquittal on the merits. What is

*7 A.I.R. 1980 Cal. 121. 28 Nagendra Kumar v. Etwari Sahu, A.LR. 1958 Pat. 329; Satdeo Prasad v. Ram Narayan,

A.I.R. 1969 Pat. 102; Jogendra Garabadu v. Lingaraj Patra, A.I.R. 1970 Ori. 91. 29 A.I.R. 1980 Pat. 267.



necessary, according to the Patna High Court is the termination of the criminal prosecution in any manner in favour of the present plaintiff. When the High Court orders a quashing of the criminal proceedings at the initial stage of taking cognisance on the ground that the proceedings were frivolous in nature, the order of the High Court put an end to the criminal prosecution launched against the plaintiff. The suit for damages for malicious prosecution was, therefore, maintainable.

VI NEGLIGENCE

Amongst the specific torts, negligence is slowly acquiring importance in India. 7 he principles governing this tort are simple enough, but their application is a matter of considerable difficulty. (1) Was there a duty to take care in the particular situation? (2) What was the extent of care required as a matter of law ? (3) And what was the extent of care exercised in fact ? These are questions the answers to which cannot, with prescision, be given in many cases. Partly because the situations in life are infinite, the first question can never be made the subject of cut and dried propositions. For the same reason, the second question cannot be answered in precise terms. Moreover, the second and third questions, for their satisfactory solution, depend on niceties, both factual and legal. Often the facts are not easily ascertained, or if ascertained, are nicely balanced. Courts then turn to certain broadly accepted guidelines (one example of which is the much misunderstood maxim—res ipsa loquitur). But those guidelines themselves run the risk of being turned into categorical imperatives, which they certainly were not intended to be. One then needs guidance in the use of these guidelines themselves.

The case of Syed Akbar™ briefly noted in the last year's survey,31

deserves to be noted again, since the Supreme Court took the opportunity of discussing in detail the position relating to civil liability for negligence, including, in particular, the doctrine of res ipsa loquitur. The driver of a bus driving the bus at a moderate speed suddenly saw a child of four years attempting to cross the road from the left to the right side. The road was 12' wide with deep ditches on both the sides. To avoid the child, the driver steered the bus to the extreme right as far as possible, but only up to a certain limit, as there was a deep ditch by the side of the road and if the bus had gone further, there was the risk of the bus falling into the ditch. The driver was prosecuted for the offence under section 304 A of the Indian Penal Code but was acquitted by the Supreme Court. The court held that the fact that the driver tried to save the child indicated that the accident happened owing to an error of judgment and not as a result of negligence or want of driving skill. An attempt was made by the prosecution to argue that on the maxim res ipsa loquitur the driver should be

3° Syed Akhar v. State of Kamataka, A.I.R. 1979 S.C 1848. 3i Supra note l_at 180, 192, 193.



held to have been negligent unless he proved to the contrary. However, the court pointed out that in criminal proceedings the maxim cannot be invoked since, in the first place, the burden of proof of every fact essential to the establishment of the charge rests on the prosecution and there is no statutory exception requiring the drawing of a mandatory presumption of negligence against the accused where the accident "tells its own story" of negligence of somebody. Secondly, in criminal proceedings, the proof must amount to such a moral certainty as convinces the mind of the court, as a reasonable man beyond all reasonable doubt. The court also took the opportunity of discussing the position with reference to civil liability for negligence. Even in an action in tort, the defendant, while giving no rebutting evidence, may offer a reasonable explanation which is equally consistent with the presence as well as with the absence of negligence. If so, the presumptions or inferences based on the maxim res ipsa loquitur can no longer be sustained. The burden of proving the affirmative, that the defendant was negligent and the accident occurred by his negligence, still remains with the plantiff; and in such a situation, it will be for the court to determine at the time of judgment whether the proved or undisputed facts, as a whole, disclose negligence.

In the case referred to above,32 there is a useful analysis of the maxim res ipsa loquitur. The relevant discussion in the judgment could be analysed as under:

(1) As a rule, mere proof that an event has happened or an accident has occurred the cause of which is unkuown, is not evidence of negligence.

(2) But the peculiar circumstances constituting the event or accident in a particular case, may themselves proclaim "in concordant, clear and unambiguous voices," the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim may apply if—

(/) the cause of the accident is unknown and (//) no reasonable explanation as to the cause is forthcoming from the

defendant. (Hi) in such cases—

(a) the event or accident must be of a kind which does not happen in the ordinary course of things, if those who have the management and control use due care and

(b) it has to be further satisfied that the event which caused accident was within the defendant's control,

(iv) the reason for the requirement that the event must be within the control of the defendant is that where he has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred,

*■ Supra note 30.



Hence, for the application of the maxim res ipsa loquitur, no less important a requirement is that the res must not only speak of negligence, but pin it on the defendant.

Incidentally, we had during 1979, a case from the Punjab,33 wherein the High Court had to point out the distinction between a mere error of judgment and negligence. The petitioner before the High Court in that case who was driving a truck had to swerve to the right to save a cyclist and, in doing so, caused the death of a pedestrian. It was held by the Punjab High Court that his action could not be termed rash or negligent.

Breach of statutory duty as off-setting contributory negligence

How far the breach of a statutory duty gives rise to civil liability is an off discussed question. In Krishna Goods Carriers (P) Ltd., Delhi v. Union of India™ such a breach figured in a somewhat different light. The breach became important as off-setting any possible plea of contributory negligence on the part of the victim. The accident in this case had occurred at a railway level-crossing. The gate keeper had failed to close the gates, though a goods train was fast approaching. As a result, a motortruck collided with the goods train. In a suit for damages against the Union of India, it was held that the plaintiff was entitled to a decree and the defendant could not, in defence, plead contributory negligence of the plaintiff. In view of the general practice of the railway authorities to close a level crossing whenever the approach of a train makes it dangerous for the public to cross the line, the High Court held that keeping the gate open is an "open invitation" to passers-by and is tantamount to a representation that it is safe for the passer-by to cross. He is not then bound to look so carefully (before crossing) as he would be if there had been no such invitation, since (in the absence of a warning) he is entitled to assume that the conditions are usual. The common law duty to prevent danger at such crossings gives him a cause of action in such circumstances.

Apart from this common law duty, the High Court pointed out, there was also the statutory obligation under statutory regulation 229/3 (b) made under the Indian Railways Act, 1890 which cast on the railways an obligation to close securely the gates of the level crossing for the passage of trains or other railway operations. A breach of this statutory duty, and not the act of inadvertence or carelessness is then the dominant or effective cause of the injury. Hardly any other conclusion could have been reached on the facts of the case, particularly in view of the statutory obligation and well known practice of the railways in regard to level crossings. It is surprising that the suit was defended at all. The very

as Mohan Singh v. The State of Punjab, (1979) 81 Punj, L.R. 631, 2* A.I.R. 1980 Delhi 92,



object of the statutory obligation in issue in this cause was to prevent injury to passers-by. Where the persons injured are precisely those for whom the statutory provision is intended, it is difficult to see how the defendants could have had an expectation that they would succeed on a plea of contributory negligence.

Rural Transport Service v. Bazlum Bibi35 presents facts of the most interesting character. A motor bus was so overcrowded that there was no accommodation inside the bus. The conductor invited the passengers to travel on the roof. In the course of its journey the bus while trying to overtake a cart, swerved to the right. In consequence, the deceased, who was travelling on the roof, was struck by an overhanging branch of the tree and fell down on the ground substaining multiple injuries. As a result of these injuries, he died the next day. It was held that the accident had resulted from the rash and negligent act of the driver and the conductor. Inviting passengers to travel precariously on the top of an over-crowded bus was itself a rash and negligent act on the part of the conductor. As regards the driver, when passengers were being made to travel on the roof, he should have exercised a greater amount of care. Leaving the metalled track by swerving to the right side so close to a tree with overhanging branches to overtake a cart when the bus was in speed, was a rash and negligent act on the part of the driver.

This case also considers the question how far contributory negligence is a defence. It was held that the strict rules of the English common law on the subject should not be applied in India and Indian courts should apply the principles underlying the English legislation—the Law Reform (Contributory Negligence) Act. 1945—for holding that the existence of contributory negligence would only mitigate the liability to the extent of the negligence that can be attributed, but would not debar the claim altogether. The judgment contains a useful review of the case law on the subject.

Accordingly, the judgment of the claims tribunal apportioning the liability on its finding as to the deceased being guilty of contributory negligence was upheld by the High Court.

Level-crossings unmanned

Mention has been made above of one case involving level-crossings. Level-crossings on the railway track have furnished the scene for another action for negligence, this time from Allahabad. The plaintiff was, however, unsuccessful and the case is of some interest as presenting a contrast to the Delhi judgment referred to above. In Prag Ice and Oil Mills Firm, Aligarh v. Union of India™ the driver of the plaintiff's tractor,

35 A.I.R. 1980 Cal. 165. 86 A.I.R. 1980 All. 168.



while attempting to cross the railway line at an unmanned*^ level crossing, got his tractor stuck up between the rails and despite efforts of the driver and conductor, the tractor could not be cleared from the railway track before the arrival of the train.38 As a result the tractor was thrown off by the impact of the railway engine, causing damage to the tractor, although the driver of the train had stopped the train as quickly as he could in the circumstances. No effort was made by the tractor driver to give some signal to the train. The level crossing was away from any town or village. The road was not a busy one. The railway administration had provided chains to be hung on each side and had also put signboards on each side, warning the public of the danger of passing trains.

The owner of the damaged truck filed a suit for damages against the Union of India. The High Court held that the railway administration was not liable, as the damage caused to the tractor was of the plaintiff's own making. The court held that while the land beneath the railway crossing is railway property and the public have a right to cross the railway line at the point where a level crossing is provided, that does not necessarily imply a corresponding obligation on the railway to close all such level crossings by gates or other devices when a train passes that way. The public while crossing the railway line must be on the look out for trains coming from either direction. The fact that a level crossing carried a warning of the danger of coming trains was sufficient and a member of the public who crosses a railway line does so at his own risk.

We thus have two rulings during the same year from two different High Courts on level crossings with varying results. It is possible to distinguish the facts of the Delhi case from the Allahabad one. The latter was of an unmanned crossing in a deserted place, and the standard of care to be shown by the railway—or, for that matter, any person or agency who creates a dangerous state of affairs—must vary according to the facts of each case. Some of the reasons to be found in the Allahabad judgment, if one may say so with respect, are likely to give the impression that a passer by through a railway crossing must take care of his own safety in every case. Such, of course, could not be the intention. Nevertheless, the subject seems to be of some practical importance in view of the rapid pace at which road transport is developing in the country and the consequential continuous increase in the number of occasions on which railways and road transport vehicles "cross" each other—both physically and legally. The theoretical interest of such cases is, of course, much wider, involving issues as it docs, such as of contributory negligence, breach of statutory duty and the like.39

37 The fact that the crossing was unmanned seems to have made a difference. 38 The statutory rules on the subject do not appear to have been discussed,



Non-contributory negligence

In Agya Kaur v. General Manager, Pepsu Road Transport Corporation*® a very curious argument was raised by the defendant under the plea of "contributory negligence". The plea did not succeed, since the facts very clearly showed that the alleged negligence of the victim—if it was a negligence at all—was totally irrelevant as a possible cause of the accident. One can describe it only a* "non-contributory". The facts of the case were simple. A rickshaw was being driven on the correct side. A bus of the defendant—the Pepsu State Road Transport Corporation—went to its wrong side at high speed and, after hitting the rickshaw, struck against an electric pole on the wrong side. In a claim by the estate of the deceased rickshaw puller, the defendant advanced the plea of contributory negligence. But on facts, the only infeience that could be drawn was that the driver of the bus was guilty of negligence and that the accident occurred because of his negligence. The defendant (the transport corporation) took the plea that the deceased rickshaw puller was carrying, in breach of the rules, three adults and one child and that, for this reason, there should be a deduction from the amount to be awarded as compensation under section HOB of the Motor Vehicles Act, The High Court rejected this contention, pointing out that even if the rickshaw had been without a passenger or had been carrying, say, only one or two passengers the accident would not have been avoided. In other words, the "negligence" contributed nothing to the accident.

One fails to see any justification for the attempt of the road transport corporation to avoid liability on the basis of a plea which, on the facts, ought never to have been advanced. The case is an illustration of the somewhat unhelpful attitude of government (including government-owned corporations) in regard to legally enforceable claims of citizens.41

VII TORTS RELATING TO INTELLECTUAL PROPERTY

Intellectual property (patents, designs and copyright) does not figure often in Indian judicial decisions in the context of the law of torts. But during 1980, we have an interesting case from Gujarat which, though a criminal case, is of topical interest. It was a prosecution for infringement of copyright in musical works. The case related to the illegal production of cassettes from recorded music—an offence under section 63 (a) and 63 (b) of the Copyright Act, 1957. The High Court stressed the need for awarding deterrent punishment in view of the fact that illegal production of cassettes from recorded music had been on the increase and needed to

39 See the Delhi judgment, supra note 34. *o A.I.R. 1980 P. & H . 183. 41 See 'Preliminary Observations', supra.



be effectively checked.42 Incidentally, it may be stated that this has now become a global problem, as would appear from a recent transnational study.48

VIII SPECIAL ENACTMENTS Need for a collection of enactments

A considerable portion of the common law of torts has in India been codified, modified, abrogated, explained or otherwise affected by statutory provisions. All of these are not recent. As early as 1855, there were brought on the statute book two important enactments affecting tortious liability. These were the Fatal Accidents Act, 1855 and the Legal Representative Suits Act, 1855. Both these enactments have had a life-span exceeding a century—although their having crossed the 100th year has remained uncelebrated. Both are still very vigorous and alive. Besides these two enactments, there are many others in the field. In fact, Indian legal literature now needs a book that will collect all the statutes relating to the law of torts. Such a collection of statutes—even if it is not accompanied by a commentary—could be of immense utility for the researcher, the law teacher and the specialised lawyer. Even the general practitioner would find it handy, since he need not carry to court the India Code or a Manual of all Civil Acts. Of course, so far as the present survey is concerned, it will not deal with the prolific case law that has been reported during the year on each of these special enactments. But some cases laying down propositions having a wider interest can be noticed.

Fatal Accidents Act and Motor Vehicles Act

The point that is now going to be mentioned concerns two special enactments, but it is not entirely divorced from the law of torts. The two special enactments are the Fatal Accidents Act, and the Motor Vehicles Act. Sections l-A and 2 of the former and sections 110̂ 4 to HOF of the latter are the precise provisions in issue. The two provisions come to operate together when a fatal accident occurs in the course of the driving of a motor vehicle. In the case of fatal accidents resulting even from the use of a motor vehicle the substantive law and determination of the existence and extent of the liability is that contained in the Act of 1855, while the procedural rules (and the rules relating to forum) are contained in the Act of 1939. This was the view taken in Shanker Rao v. M/s Babulal Fouzdar.H There is, however, a contrary view also—as is apparent from the case law discussed in the very ruling cited above. According to the Madhya Pradesh High Court, even in the case of death from accident caused by the use of motor vehicles, the substantive law is to be ™ Bhupendra M. Patel v. State af Gujarat, (1980) Cr. L, J. 1017. 43 Note, Unauthorised Duplication of Sound Recordings Vol. 14. 2 Vanderbilt Jour

nal of Transnational Law, 399-443 (Spring 1981). « AI.R. 1980M. P. 154.



found in the Fatal Accidents Act. The provisions of sections 110,4 to 110F of the Motor Vehicles Act are merely procedural in nature, and not substantive. They provide a cheap remedy, but questions pertaining to a substantive right must be determined in accordance with the general law of tort.

IX REMEDIES FOR TORT : DAMAGES

Text books writers, when dealing with the remedies for tort, usually enumerate a number of judicial remedies—damages, injunction and declaration—and a few extra-judicial remedies. The latter are now practically obsolete. Amongst judicial remedies, only damages furnish any noticeable case law during the year under consideration. The limits to which damages can go cannot be precisely defined, Damages for personal injury are very much "at large". All that can be said is that the amount of compensation must be fair and reasonable.45 Fortunately, what is fair and reasonable is being spelt out by several judicial decisions. The maximum number of significant decisions on damages for personal injuries comes this year from Gujarat.46 The cases are interesting both for the variety of situations they present, and for the lucid and helpful pronunciation of principles that one finds in the decisions. If ever a book like Mayne on Damages comes to be written in India, the author will find enough useful material in the decisions from Western India.

Damages claimed by a husband

Attention can also be drawn first to a Gujarat case which arose under the Motor Vehicles Act but has a wider interest in the field of tort. In Khodabhai Bhagwanbhai v. Hirji Tapin*1 the wife had died as a result of an accident caused by the use of a motor vehicle. On a claim being made by the husband, an objection was raised that since the wife was not earning anything, the death should have meant nothing to her family members and the economic loss to them would be practically nil. The High Court of Gujarat rejected this contention. If the wife had been earning, her earnings would certainly be considered in computing the net economic loss, but even if she was not earning, the gratuitous services rendered by her would be required to be replaced by other modes which will have their own economic importance and value; the pecuniary benefit from these services would have to be assessed while determining the damages on account of the untimely death of the wife and for the purpose of ascertaining the economic loss caused to those who were left behind.

•s Krishna Kishore Kar v. Calcutta Tramways Co., 85 C.W.N. 311. *fi See also cases reported from Gujarat in 1978, namely, Babu Mansa v. Ahmedabad

Municipal Corp., A.I.R. 1976 Guj. 134; Shivkor v. Ramnaresh, A.I.R. 1878 Guj. 94, 115.

*7 A.I.R. 1980 Guj. Z5'f 21 Guj. L.R. 187.



Principles for award of compensation

In Mohamed Hanif Dallu v. Lunkaran Ganpatram Sharma** the Gujarat High Court had the opportunity of discussing, in great detail, the principles for the award of pecuniary compensation for disablement. Pointing out that in disablement cases the compensation awards are always higher than even in cases of death, because the compensation has to be given to a living victim both for his personal loss and for the economic loss, the High Court summarised the principles laid down in such cases as under:

(1) Bodily injury is to be treated as a deprivation which entitles a plaintiff to damages; and the amount of damages varies according to the gravity of the injury;

(2) deprivation may bring with it three consequences—loss of earning capacity, expenses of having to pay others for what otherwise he would do for himself and loss of enjoyment of life or a dimunition in full pleasures of living;

(3) in considering the deprivation, the court should have regard to the gravity and degree of the deprivation, that is to say, whether one or more limbs has been lost, the duration of the deprivation, and the degree of awareness of the deprivation. The settled pattern of:

awards in personal injury cases is not to award merely token damages but to grant substantial amounts on both the head of personal loss as well as economic loss. Of course, in order to avoid any overlapping, a global estimate has to be made of the all-told loss49

In yet another Gujarat case Tasvinaben v. Ismail Ibrahim,^ the claimant in a claim for damages for personal injury was engaged in business along with his other brothers. Though the business was not markedly affected by the absence of the claimant in attending to the business since his brothers attended to the business, the High Court pointed out that because of the permanent (though partial) disability suffered by the claimant he would not be able to attend to the business as efficiently and as cleverly as he used to do before the accident on account of the permanent disability. This loss suffered by the claimant had to be evaluated in terms of money. Business requires not only supervision or physical attendance for a number of hours but it also requires actual interest, application of mind, resourcefulness and many other things which would be provided by a person who is physically and mentally fit to look after himself and look after the business.

« (1980)21G.L.R.412. « Id. at 415. w (1980) 21 Guj. L.R. 675.



Injury to young boy

Finally, in Karshan Velshi v. Shankerram Shivram Joshi,n a young boy suffered permanent disability as a result of an accident and the High Court had to deal with the factors to be considered in assessing compensation. In the case of a young boy who is not already an earning member, the matter becomes one of difficulty. However, the court pointed out that one must take into account the gravity, extent and nature of the permanent disability and its effect by way of loss of earning capacity. The loss calculated could in no event be less than Rs. 50 per month.

There are a few decisions on damages from other High Courts. It has been held by the Kerala High Court in Kumaran v. Agustine^ that the task of the court is to give the person a present value of the prospective loss. It must be given on the fairest estimate, one can make, of the probable continuance of the plaintiff's profession and what that income would be. This is a very difficult region which depends on a number of uncertainties which make the calculation very difficult. It includes such matters as the probable length of time of the plaintiff's future earning capacity, his prospect of obtaining an employment and the normal hazards of life. In practice, the method most frequently adopted is to state in general terms what the loss of earning capacity is and then to state that in the ordinary course of events, the plaintiff must have expected to continue to earn at the pre-accident income, for, say, 20 years. It is, of course, impossible to any with say certainty what multiple should apply to the basic net annual loss. It will vary from case to cases. Also the High Court added, assessment of damages has to be on the basis that by the end of the contemplated number of years, the plaintiff would have used up not only the capital but also the income.53

In reference to cases on damages reported during 1980, it is appropriate to note an Orissa decision New India Assurance Co. v. Surjyamoni Podhi,bl

which, though immediately relating to a statutory provision section 110— CC, Motor Vehicles Act, 1939 is of interest on the general question of damages for tort. In that case, the motor accidents claims tribunal had, while ordering compensation, awarded interest on the amount of compensation from the date of the accident. In revision, the High Court held that section 110-CC provides for the award of interest from such date, not earlier than the date of making the claim, as the tribunal may specify. The Tribunal could not have awarded interest from the date of the accident.

5i (1980)21 Guj. L.R. 569; (1980) Ace. Claims Journal 527. « (1980) K.L.T, 580. w The court cited Tevlor v. O'Connor, 1971 A.C. 115. 64 A.I.R. 1980 Ori. 17.



X BUREAUCRATIC ATTITUDE

Some comments have been already made in the opening paragraphs of this survey as the attitude of the bureaucracy towards citizens' claims. For at least three years, courts have been making adverse comments. The year 1980 has given some cases which show that the attitude of the bureaucracy is still in need of improvement. In a Rajasthan case, a labourer had died in an accident while on his way to join his duty. It was customary to grant an ex gratia monetary relief to the family in such cases. But in this particular case, the state, instead of granting any relief, contested the claim of the widow for compensation. When compensation was awarded and an appeal against the award of compensation had already become time-barred, the state even went to the length of challenging the award of compensation by seeking a writ. It was held that in the matter of payment of compensation the Government, as an employer, should take a liberal view and should not indulge in protracted litigation based on technicalities.65

XI CONCLUSION

By way of conclusion, it may be stated that during the year 1980, while no new doctrine was enunciated nor was any radical departure from the pre-existing trends showed, the year showed that many of the problems which mark tort litigation are still with us. To some extent, these problems arise from insufficient attention being paid by those concerned to reform of the law on certain points. Some of the problems relate not merely to litigation in tort, but also to litigation in general—for example, delay in the disposal of cases. However, in an action relating to tort, such delay causes more than average inconvenience, since to the person who has already suffered a personal loss or injury and who has himself incurred expenditure finds, it is financially harsh that even the meagre sum which he will ultimately get will come to his hands after a long time. This aspect particulary reinforces the need to establish sufficient number of tribunals to try motor accident claims,

As to the general pattern of actions in tort, the majority of cases relate to negligence and malicious prosecution. Negligence now is in the forefront. Ultimately, it seems, almost the whole of the field of the law of torts might come to be occupied by the tort of negligence. Leaving the topic of specific torts and approaching the more abstract topic of the

« Asst. Engineer, P.W.D. (B. & R.) Jaipur v. Dhappo, (1980) Lab. and Ind. Cases 1202 (Raj.) (Jaipur Bench) (G.M. Lodha, J.).



principles which govern liability in tort in general, one finds that vicarious liability, contributory negligence and all other familiar topics recur again and again before the courts. The paucity of tort litigation in India leads to the position that one does not have in this field novel and exciting questions or questions of absorbing interest that one finds arising in this field in the West or in the United States. At the same time, it is likely that with increasing public awareness in regard to rights, such questions might start coming up before the courts. The law relating to privacy, and the law relating environment in so far as it is allied to the field of tort (particularly, nuisance), might possibly get cultivated in the near future, once the awareness of these rights becomes more intense.


15 law of torts - 14.139.60.116:8080

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