Before learning about the various aspects of Law of Torts and reformations needed in India, it is expedient for us to understand what a ‘tort’ is. Tort is a wrong done to a person, but it is not a criminal wrong. Rather, it’s a branch of civil law tree. It is a civil wrong however, not breach of contract or breach of trust either, it is a civil wrong of it’s own kind. When a tort has been committed, it is necessary that there should be an injury of legal nature. And for such an injury, there should be a legal remedy available.
The term “tort” is a French word, which literally means “injury or wrong.” It has been derived from Latin term “tortus” which means “twisted or crooked act.” Therefore, the term implies that it is a conduct, which is unlawful and crooked. It maybe compared to the Sanskrit term “jimha” or English term “wrong” or Roman term “delict.”
Constituents of Torts:-
Generally speaking, tort can be classified into any action or omission done performed by the defendant of the suit against plaintiff of the suit, which was without a reasonable cause or excuse and because of this conduct, the plaintiff has suffered some legal damage or injury. The following are the constituents of a tort:-
1. Wrongful Act or Omission performed by the defendant of the suit.
What it means is there must be some activity done by a person which violates the legal rights of another person. Some movement, touching of articles, entering on land, physical interaction where there exists lawful right of another person, or a breach of duty and more, fall under this category. It means that a person has performed some act which he wasn’t expected to do, or has abstained himself from doing something which he was supposed to do. This breach of duty should, however, be imposed by law. Wherein he doesn’t act like a reasonable and prudent mind, he is liable to be tried for such wrongful act or omission, as the case maybe. But the crucial test of legally wrongful act or omission is it’s prejudicial effect on the legal right of another.
Such as in the case of Municipal Corporation of Delhi vs. Subhagwati where some parts of a clock tower fell on some people, the Apex Court held that the respective area Municipal Corporation was under duty to maintain the tower and to look after it’s repairs, which were omitted. Therefore, deaths were caused due to falling of such articles arising out of Corporation’s failure to maintain and repair the tower and thus, the Corporation was held liable.
2. Violation of Legal Right
“The act complained of, should, under circumstances, be legally wrongful as regards the party complaining, that is, it must prejudicially affect him in some legal right, merely that it will, however directly, do him harm in his interest is not enough.”
Therefore, there must be violation of a legal right, and not merely conflict of interests.
To have appropriate remedy, rights have been broadly classified into following two heads:-
a) Private Rights – all rights which are available to a person in individual capacity. It includes all rights which belong to a certain particular person only. Every violation of such right automatically denotes an injury against which action is taken. As per the case Allen vs. Flood the following are included in set of Private Rights:-
- Right of reputation (safety to public image)
- Right of bodily safety and freedom (safety to body)
- Right of property (safety to estate)
b) Public Rights – all rights which are available to members of a society generally, such as, right to earn income, right to legal aid, right to be served with justice and more. When a public right is infringed, liability does not arise per se. Punishment is inflicted when there lies a special injury in addition to the injury suffered by public in general. It was held in the case Lyon vs. Fishmongers’ Company that no actions will lie against an infringement (not authorized by law) of a public right unless there exists in addition to the injury to the public, a special, peculiar and substantial damage to occasioned the plaintiff.
3. Legal damage/injury
Law of Torts operates relying upon two maxims, namely “injuria sine damno” and “damnum sine injuria.” The former means violation of a legal right which may or may not result into causing of harm, loss or damage to the plaintiff. For example, right to healthy environment. On the other hand, latter one means an injury or damage sustained but without violation of a legal right. For example, ousting of a competitor from market without use of anticompetitive practices.
Ashby vs. White is the classic case where violation of a legal right took place yet no damage was sustained. Facts were such that, defendant wrongfully refused to register vote of a qualified voter at the parliamentary elections. The candidate for whom the vote was tendered did actually win the elections and no loss was suffered by the rejection of vote. Despite the fact that no injury was sustained as the desired candidate anyway win elections, Court held that legal right to vote was violated and it was thus an action lay. Thus, we can understand that case of “injuria sine damno” shall be an actionable claim even if there is no proof of any injury or even if no actual damage is proved.
On the other hand, Mogul Steamship Co. vs. McGregor Gow & Co. is the classic example where no legal right has been infringed yet damage has been done. Facts were such that a number of steamship companies joined hands and lowered their freight with a view to drive out one of the competitors in the market, which happened. Though it’s an old case, yet it holds good subject to the Competition Policy of the State. For example, in India, such an activity would be an anticompetitive practice under The Competition Act, 2002.
4. Legal Remedy
Legal remedy is the last constituent yet the most influential one. This essential is based on the maxim “ubi jus ibi remedium” which means there is no wrong if there is no remedy. What this means is, a tort is actionable only to the extent if there exists a lawful remedy to the said wrong. For example, unauthorized trespass of land is prohibited under many laws throughout globe.
But, if there doesn’t exist any remedy against the said wrong, claim is not maintainable. For example, suit for damages can be sought in case of destruction of property but not for a moral wrong, such as disobedience to speech of a spiritual guru. Or, as put in better words “ex turpi causa non oritur action” i.e. an action does not arise from an immoral or a base cause.
Law of Torts is a subject which has not got it’s appreciation in India. Having the absence of single/distinguished codified statutes for the aforementioned has actually led to a situation where common man has to approach Judiciary and invoke his alternate options, which are often not to his comfort, thereby discouraging them to having their right exercised, further causing loss of faith in the whole system. It is evident that Legislature had made several attempts to enact laws while Judiciary has supplemented it by inserting additional situations and exploring the applicability of laws, but a time has come where common man is in stress at all times and his issues are not being addressed, merely because they are inferior in hierarchy in the priority list. Admitting that enacting criminal, income tax, property-related laws are on the top of the list, but where does a common man go? Where should he submit his grievances? Who shall adjudicate better? All of these are few of questions unanswered till now. Common man is in stress and mental agony. Contributors to his situation include after-sale service harassment by companies, especially MNCs, not forgetting the poor quality of service by Indian companies; unnecessarily delayed procedures for settlement of dispute with respect to claims; poor quality of products commercially or otherwise sold; absence of specialized adjudicating authorities, especially in emerging science and technology like Internet Service Providers (ISPs) and mobile network service providers; lack of awareness about rights and duties, which are mere few of the complete list. It is about time that Legislature focuses on enacting laws strictly dealing with Law of Torts so a revolution is welcomed which will put an end to the silent but disastrous misery of a common man. Laws codified by Parliament of India have been always given credit for being well-researched, balanced and target-hitting. This talent should also be applied to this concerned field of law. What is the future of India is a question nobody can answer. It is cannot be held incorrect that Republic of India is going in the direction of being a country dominating the world. Improvising domestic laws will not only strengthen faith of resident citizens, but will also uplift the image of the country internationally when modern thoughts are their basis.
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