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EVOLUTION OF LAW OF TORTS IN INDIA



ABSTRACT

Law makes sure that each and every individual is given due recognition of their rights and no one is deprived. To make this process easier, the whole concept is divided into a number of sub - concepts which have specific laws dealing with them. The concept of Law of Torts is one of the main obligations under Civil Law. When a legally protected right is violated, causing any harm or destruction such an act is named as Tort. In short, a tort basically means a civil wrong. Each and every fact of rights gives rise to a specific element of tort. The important thing here is that the person committing a tort is never considered guilty and he is seen only as he is liable to the act or omission. The person committing the civil wrong is called a ‘tortfeaser’ in Gordon vs Lee, 1935.. The mental object of the Law of Torts is that people are responsible only for the consequences of their act or omissions.

This paper answers the question how tort law evolved in India. It begins with analyzing the term ‘tort’, its definitions, a brief history and goes into the main sub topics that come under the tort law. This also analyses the case laws and how they’re judged. Various types of remedies available are also discussed. The final part includes my own views and a few suggestions in this regard.

KEYWORDS: Law of Torts, Civil Wrong, Compensation, Liability, Remedies, Act, Omission

INTRODUCTION

The law is not a light for you or any man to see by; the law is not an instrument of any kind. The law is a causeway upon which so long as he keeps to it a citizen may walk safely.

- Robert Bolt

The term ‘tort’ has its origin to a Latin word called ‘tortum’which literally means “something which is twisted or crooked.” This concept includes only the civil wrongs which are not bound by any contract. It has other names which are delits and quasi delits.[i] Tort is actually a breach of duty obligatory by law, out of which a civil right of action arises with a remedy not applicable to other area of law. The Great Jurist Salmond defines tort as a civil wrong for which remedy is a civil law action for unliquidated damages, and which is not exclusively the breach of contract, or the breach of trust, or other merely just obligation.[ii] There are several such definitions which give a clear view of what tort is. There are certain essential elements of Tort out of which it can be proves. They are

l There should be a wrongful act.

l That wrongful act has to result in a legal damage caused to another person

l A right has to arise from such act and damage.

To put it into simple words, when a wrongful act done by a person affects our rights and causes legal damage, there arises a remedy and such process is called the Law of Torts. This is based on a legal maxim “ubi jis ibi remedium” which means that “where there is a right, there is a remedy.” Since tort is a civil law, evident differences can be seen between a tort and a crime as a tort is a wrongful act which constraints the individual or his material objects while crime is actus reus which restraints the social order of the social group we live in. Moreover, Crime takes place mostly with an intention to cause harm or hurt.

HOW INDIA ADAPTED THE TORT LAW?

In 1065, when England was conquered by Normans, the French speakers, French became the verbal language in the England courts, and so many specialized terms in English Law have their origin to French and tort is one among them. The word tort is based on the concept that each individual in the society have certain rights. The purpose of this law is to implement the rights and duties of the citizens. Tort has developed over the centuries and has grown enormously in the European countries such as the Rome, England, USA, and other advancing countries and to a definite extent in India. The concept of Tort came to India through England. It is organized based on morality which poses tobe a legal urge on individuals to perform their duties and when there is any breach of such duty then it gives remedy to the complainant in the form of compensation or damages by the defendant. The Sanskrit word Jimha, which impliedly means ‘crooked’ was used in the text of ancient Hindu law in the tort of fraudulent conduct. The evolution of tort law in India can be observed in three phases namely

l Ancient era

l Medieval era

l Modern era

ANCIENT INDIA

It was considered that the main and basic modes for the peaceful progression of the lives of the people were the State and the King. It was believed that a King can do no wrong. There are several written materials which also talk about the law and the legal foundation, liability and unsusceptibility of the King, concept of the origin of the State, responsibilities of the supreme towards its individuals and equitable remedy to the smitten people through Ordeal system etc. The most important among the various manuscripts are the Vedas, Smritis, Sutras, Arthasashtra, Kautilya, and the writings of overseas travelers. They also tell us the liability of the State to counterbalance the victims, aggrieved by the King’s officials during ancient period. The concept of vicarious liability was formulated during Vedic period in India. The King had to protect the life and property of the people. If any wrong occurred affecting the people, the King was liable to make up them. Brihaspathi says where a servant authorized by his master does any wrongful act for the welfare of his master, the master shall be held liable for it. Thus the concept is established that when the servant’s act is for the welfare of the master in the due course of his employment, the master is made liable. Thus, according to Henry Maine, the Punitive law of ancient India is not the law of crimes but the law of torts. But it is seen that during ancient period tortious liability seems to protect the king and the state from their criminal acts.

MEDIEVAL ERA

It was analyzed that there was a very little progression of law of torts in India when compared with the law of crimes when the country was ruled by Islamic rulers such as Delhi Sultanate, Mughal empire. The reason behind this is their principle of n eye for “an eye and tooth for a tooth.”

MODERN ERA (during 18th and 19th Centuries)

The British empire brought Common Law and Tort law came into India when the British Empire established three presidency courts at the efforts of Sir Henry Mane and Sir James Stephens. It tried to codify such laws 1886 through Sir Frederick Pollock in the form of Civil Wrongs Bill which was never passed.

During British rule, Courts in India were administered by the Statutes of Parliament in the UK. The Indian enactments were supposed to act based on justice, equity and good conscience which are commonly known as the “General Principles of Law” when there was no specific law to solve the particular dispute in a suit. In the cases of damages for torts, courts preceded the English common law as it was in harmony with the general principles of law. They did not consider it when any of its rules were found unreasonable and unsuitable to Indian situations. In M.C. Mehta v. Union of India[iii], Justice Bhagwati said that we have to develop new principles and lay down new rules which will deal with new problems which arise in a highly industrial system. We cannot let our judicial thinking to be structured by referring the law as it prevails in England or in any foreign country. We are surely prepared to acquire light from whatever source it is but we have to construct our own jurisprudence. It has also been held that Section 9 of The Code of Civil Procedure, which lets the civil court to try all cases of civil nature, impliedly bestows jurisdiction to apply the Law of Torts as principles of justice, equity and good conscience.

A FEW MAIN CONCEPTS UNDER THE TORT LAW

There are two basic principles to be remembered under the Law of Torts which are injuria sine damnum and damnum sine injuria.

Injuria sine damnum means injury without causing damage. It is a violation of an utter private right without causing any actual loss or damage. Therefore the litigant will be compensated if his legal rights are violated even though there is no material loss or damage. In Ashby v. White[iv], Plaintiff was confined by returning officer due to which plaintiff was not able to cast his vote. Though the party in the election won but his legal right was not violated, so here compensation was granted. Damnum sine injuria means damage without causing injury. In simple words, damage caused, however substantive, to another person is not unjust in law unless a legal right is violated. Hence, there will be no compensation for for the plaintiff unless the legal right is violated. In Glaucester Grammar School Case[v], the defendant set up a competitor school near the plaintiff’s school, due to which the plaintiff suffered loss as all his students started joining the defendant’s school. Because of this, plaintiff had to reduce his fees out of which he suffered material loss. So plaintiff sued the defendant to seek remedy but no compensation was given as no legal right was violated.

Strict Liability means in the wrongful acts committed under this section a person is made liable irrespective of his intention to commit the act. These acts are of such a rigorous nature, there is no need of proof. Generally such wrongful acts include the acts of producing faulty goods and medicines which cause a grave injury to the consumer’s life. In such cases, not only the manufacturer but also all those are involved in the supply chain of the defective product are held liable until it is proved who was so at fault.

Absolute Liability means if any person is involved in an intrinsic dangerous or hazardous activity, and if any harm or hurt occurred to any person due to any accident which took place during the course of such dangerous and hazardous activity, then the person who is involved in such activity will be held absolutely liable. The exception to the strict liability rule also wouldn’t be taken into consideration to make sure that victims of such accidents get faster relief through insurance, the Indian Parliament passed the Public Liability Insurance Act in 1991. CONCLUSION AND SUGGESTION

After discussing all the above topics, it can be seen that the tort law is not punitive in nature. Hence, it can be observed that a stronger basement for a codified Tort law can be implanted in India by rigorously arguing the cases under Tort, making people aware of this branch of law where relief can be sought and gradually developing this area of Law. But torts of the future will offer intellectual challenges for law students, professors, lawyers and judges and administrators. The focus will be not on claims for physical injuries but on assorted harms to personal dignity, to financial interests, to interests in relationships with the changing family, groups, traders, the community, the political system and a variety of now unimagined claims to protect the quality and opportunities of life for the individual citizen.

[i] Basil S. Markesinis, Tort, Available at: https://www.britannica.com/topic/tort [ii] Available at: http://www.legalserviceindia.com/legal/article-1734-foundation-of-torts-law-in-britain-and-india.html [iii] 1987 AIR 1086 [iv] (1703) 92 ER 126 [v] ((1411), Y. B. 11 Hen. 4, f. 47, pi. 19) Authored by: Cyndhia. JR

School Of Excellence in Law, The Tamilnadu Dr. Ambedkar Law University

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