Law of Torts – An Overview

INTRODUCTION

A tort is a civil offense under common law jurisdiction that causes the defendant to suffer injuries or damages, resulting in legal liability for a person who performs a tortious act. That could involve deliberate emotional damage, negligence, financial losses, injuries, privacy violation and several other things. Tort law, a suit where the object of a court case is to obtain a private civil remedy such as damages, cab be related to criminal law, concerned with criminal offences punished by the state. Tort law often compared with contract law, which provides a civil remedy after breach of duty; however although the contractual obligation is one preferred by the parties, the duty is enforced by the state in both tort and crime. In both contract and tort, successful applicants must show that they have suffered foreseeable loss or damage as a direct result of the breach of duty.

LAW OF TORT IN INDIA

Tort law in India is a contemporary evolution of common law development complemented by codifying rules, including provisions regulating damages. Although India typically follows the United Kingdom method, there are some differences which may indicate judicial intervention, and thus create controversy. Tort is violation of some duty which is outside of the contract and which has caused damage to the plaintiff giving rise to civil cause of action for which remedy is available. If there is no remedy it cannot be considered a tort since the purpose of tort is to provide remedy to the individual who has suffered injury.

The developments in Indian law do not need to be along the same lines as in Britain. In M.C. Mehta v. Union of India, Justice Bhagwati said that we need to develop new principles and lay down new standards to deal adequately with the new problems that arise in a highly industrialized economy. We cannot allow our judicial philosophy to be constructed by reference to the law that prevails in England or in some foreign nation. We are certainly prepared to receive light from whatever source may come but we must build our own jurisprudence. It also been held that section 9 of The Code of Civil Procedure, which the civil court to try all suits of a civil nature, impliedly confers jurisdiction to apply the Torts Laws as principles of justice, fairness and good conscience. Accordingly, the court can draw upon its inherent powers under section 9 to expand the field of liability.

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In a more recent decision by Jay Laxmi Salt Works (p) ltd. v. State of Gujarat, Sahai, J., it has been found that the entire law of torts is based and structured on morality. It is therefore very primitive to close strictly or close finally the ever expanding and ever-growing horizon of tortuous liability. Also for social progress, organised growth of the population and cultural refinedness the liberal approach to tortious liability by court would be beneficial.

Constituents of Tort 

The law of torts is structured as an tool for ensuring that individuals adhere to the standards of reasonable conduct and value one another’s rights and interests. This it done by protecting interests and by providing for situations in which a person whose protected interest is violated can recover compensation for the damage suffered by him from the person who has breached the same. Interest here is meant a claim, the intention or purpose of a human being or community of human beings seeks to satisfy, and of which, therefore the ordering of human relations in civilized society must take account. However, it is clear that every want or desire of a person cannot be protected nor can a person claim that whenever he suffers loss he should be compensated by the person who is the author of the loss. Accordingly the law, defines what interests need protection and also maintains a balance when there is a conflict of protected interests.

Every wrongful act is not a tort. To constitute a tort,

# there must be a wrongful act committed by a person;

# the wrongful act must be of such a nature as to give rise to a legal remedy and

# Such legal remedy must be in the form of an action for unliquidated damages.[1]

DEVELOPMENT OF TORTS IN INDIA

The Supreme Court of India helped shaped the law of Torts in India through its many landmark judgments. It has also been noted a number of occasions, that there is a need to codify the law of Tort in order to facilitate its wider use. The principles of Torts have also been applied in newer legislations such as the Environmental Protection Act, 1986, The Consumer Protection Act 1986, The Human Rights Protection Act 1988, The Motor Vehicles Act, 1988. However, it is still observed that the branch of Torts as a whole continues to grow and develop in India compared to the development of Torts in countries such as the United Kingdom and United States.

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Causes of slow development

  • Uncertainty of law: Inasmuch as law of torts is not codified, there is no uniformity and consistency in its rules and doctrines. In India, there is shortage of case-law with regard to law of torts owing to the cause. Indian Courts refused to obey some of the doctrines of the Torts of English Courts founded in 19th century. The Supreme Court of India has established a new doctrine in M.C. Mehta Vs. Union of India – Concept of absolute liability. Supreme Court refused to follow the doctrine of ‘Strict liability’ in Rylands Vs. Fletcher and adopted a new concept of ‘Absolute liability’.
  • Lack of political awareness: Most of the people in India are unaware of their rights because of their illiteracy. Owing to lack of political knowledge, most citizens in India are unaware of their legal rights.
  • Illiteracy: Literacy in India is the key to socio-economic progress. The Indian literacy rate has risen to 79.31% (2011 provisional census figures). The old 1990 report predicted that it will take until 2060 for India to achieve universal literacy at then-existing pace of progress. The literacy rate rose from 18.33 per cent in 1951, to 74.04 per cent in 2011. It shows that there is still illiteracy in India.
  • Poverty: Despite being one of the fastest-growing economies in the world, India has a major poverty problem, with 69% still living on less than US $2 a day, and 33% living on less than US $ 1.25 a day. Educational achievement is low, and India holds 1/3 of the world’s illiterate population. The 73rd Amendment to the Constitution of India mandates that 1/3rd of all seats in Panchayats be reserved for women, bringing more than one million women to elected office. Despite substantial economic growth, one quarter of the nation’s population earns less than the government-specific poverty threshold of Rs 32 per day (approximately US $ 0.6). It is therefore clear that as a result of poverty; most people are not able to afford the high costs of litigation in order to protect their legal rights.
  • Expensive and dilatory judicial system: Apart from challenges of poverty and illiteracy, another big issue is that the judicial system in India is very expensive and it is dilatory. The cost for the Court and Advocates is rather very high. The poor are therefore prepared to suffer their violation rights instead of going to court to seek redress. If a poor man is ready to fight by paying huge court-fee for infringement of his civil rights, after long of period of years, he will only receive Rs. 500/– Rs.1000/- as damages, he considers that this is of no benefit at all. Tort based cases are disposed of within one year in England but in India, it is very difficult to dispose of all these cases within a year.[2]
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However, this should not be taken as if the courts do not accept or support genuine claims on the basis of tort. Hence, it may also be claimed that a better foundation for a codified or a more developed Tort law can be built in India by rigorously arguing the cases under Tort, making citizen aware of this field of law where relief can be obtained and gradually expanding this area of Law.

CONCLUSION

Thus to conclude, law of torts is a branch of law in some aspects, resembles most of the other branches, but is essentially different from them in other respects. While there are conflicts in views between the various jurists on the the liability in torts, the law has been formulated and is deeply established in the field of law. There are well defined elements and conditions of liability in law of tort. This legislation allows the citizens of a state to claim compensation for the minor or significant harm caused to them. Thus the law has earned a lot of confidence among the laymen.

[1] Lakshmi Somanathan, Nature And Scope of Law of Torts in India

[2] Y. SRINIVASA RAO, JUDGE, Causes for slow development of Law of Torts in India, 11th March 2019

Author: Kunal Gupta,
Jagran lakecity University

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