Nature and Definition of Torts in India

Nature and Definition of Torts in India

Introduction

Law of Torts is completely grounded on precedents Though precedents play an important part in the development in any law, but in case, the law of torts is the only source of law. There’s a enactment or act that specifically deals with the Law of torts. Through this characteristic, the judgments of common law come an important and only source that recognizes these rights as a subject of law.

 Torts law is uncodified Codified laws are laws, which have written bills and acts on that subject and changes take place by the process of correction in the congress, it can be distinguished from uncodified laws which do not have any written bills or acts and have to calculate on precedents and case laws and change can be possible without the intervention of the government. therefore, the law of torts is completely grounded on precedent and developed through different case laws, it can be healthily said that law of tort law is uncodified unlike Felonious law and Contract law which are fully codified, and precedents don’t play a major part that it plays in Laws of Torts.

Some examples are:- duties not to assault another person, not to trespass (entering onto land without the consent of the landowner) on another’s land, not to take another’s goods, and to take care to not injure one’s neighbor.Some duties are laid down by legislation; others are found in the common law. The emphasis on the nature of tort as a civil wrong differentiates it from crime.

Definitions of Tort in Law

According to Section 2(m) of the Limitation Act, 1963:-

“Tort means a civil wrong that is not exclusively a breach of contract or breach of trust.”

“It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.”

 -John Salmond

“Tortious Liability arises from the breach of a duty primarily fixed by the law. This duty is towards persons generally, and its breach is redressable by an action for unliquidated damages.”

-Winfield

History of Law of Torts

Under Hindu law and Muslim law tort had a much narrower conception than the tort of the English law. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. The law of torts in India is especially in English law of torts which itself is based on the principles of the common law of England.

The first British Courts established in India were the Mayor’s courts in the three presidency towns of Calcutta, Madras and Bombay. These courts were established  with in the  18th century,  and therefore the  charters which established them require them “to give judgment and sentence according to justice and right”.  This was made suitable to the Indian conditions appeasing to the principles of justice, equity and good conscience and as amended by the Acts of the legislature. Its origin is linked with the establishment of British courts in India. The expression justice, equity and good conscience was interpreted by the  council  to mean the rules of English Law if found applicable to Indian society and circumstances. The Indian courts before applying any rule of English law can see whether  it’s  suited to the Indian society and circumstances.  the appliance  of the English law in India has therefore been a selective application. On this the  council  has observed that the ability of the common law to adapt itself to the differing circumstances of the countries where it has taken roots is not a weakness but one of its strengths. Further, in applying  English  law on a particular point, the Indian courts  aren’t  restricted to common law. If the new rules of English  legislation  replacing or modifying the common law are more in consonance with justice, equity and good conscience,  it’s  open o the courts in India to reject the outmoded rules of common law and to apply the new rules.

  for instance , the principles of English statute, the Law Reform (Contributory Negligence) Act, 1945,  are  applied in India although there is still no corresponding Act enacted by Parliament in India.

The development in Indian law need not be on the same lines as in England. In M.C. Mehta v. Union of India , Justice Bhagwati said,  we’ve  to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by  regard to  the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but  we’ve  to build our own jurisprudence.  it’s  also been held that section 9 of The Code of Civil Procedure, which enables the civil court  to undertake  all suits of a civil nature, impliedly confers jurisdiction  to use  the Law of Torts as principles of justice, equity and good conscience. Thus the court can draw upon its inherent powers under section 9 for developing this field of liability.

In a more recent judgement of Jay Laxmi Salt Works (p) ltd. v. State of Gujarat, Sahai, J., observed: truly speaking  the whole  law of torts is founded and structured on morality. Therefore,  it might  be primitive to close strictly or close finally the ever expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refineness the liberal approach to tortuous liability by court would be conducive.

Characteristics of Tort

  1. Tort is a civil wrong.

There are two sorts of wrong – civil wrong and criminal wrong. Tort comes under the purview of civil law and its wrong is understood as a civil wrong. In civil wrongs, the casualty or the plaintiff files civil proceedings against the person causing injury or the defendant. The matter during a civil wrong is to be sued by a person himself, and therefore the remedy for the same is unliquidated damages..In order to make a person liable of tort, one must note that the wrongful act or a wrongful omission must be one which is recognized by the law. If there’s mere moral or social wrong, there can’t be liability for the same.

Examples:         1) Right of excellent reputation: Defamation

2) Right of bodily safety & freedom : Assault & Battery

3) Right of property : Trespass

Case Law: Municipal Corporation of Delhi vs. Subhagawanti
Municipal Corporation, having control of a tower in the heart of the city does not keep it in proper repairs and the falling of the same results in the death of a number of persons, the corporation would be responsible for its omission to take case in the matter.

2. Tort is an infringement of a right in rem.

There are two  sorts of  rights, Right in rem and Right in persona. While the right in rem is available against the whole world whereas right in persona is available against any particular individual. A tort is a violation of a right in rem.

Every person has the right to the enjoyment of his own property and any person who has violated or infringed he will be sued and liable to pay the compensation in the form of unliquidated damages. this is known as right in rem which is available against the whole world. this way the tort law in right in rem and is available against the whole world. there is no need for any pre-existing relation, the only requirement is the existence of right and that right has been breached by a person. Tort is a private wrong because it breaks the legal rights of an individual or specific group of individuals.

4. Remedy for tort is unliquidated damages.

The remedy for tort is equitable relief to the injured or unliquidated damages that are calculated by the court in accordance with the loss caused. In torts Law, the remedy is awarded in the form of damages or as unliquidated damages which are calculated by the court on the basis of loss caused. In torts law, the case is to restore the parties in their original position owing to this reason the remedy is given in the form of compensation so that the party can be restored to the original position.

5. Law of tort is uncodified.

A tort is an Uncodified law. Uncodified law is a law that does not have any written statutes or acts, and it has to rely on precedents and case laws and change can be possible without the intervention of the government. They’re originated from sources such as court decisions, customs, and principles of jurisprudence. The law of tort is based upon precedent and developed through different case laws.

References:

  1. Ratanlal & Dhirajlal The Law of Torts 28th Edition by Lexis Nexis Publication
  2. https://www.lawcolumn.in/law-of-torts-definition-meaning-scope-nature-2/#INTRODUCTION
  3. https://legalraj.com/articles-details/tort-definition-nature-scope-objects
  4. https://www.legalserviceindia.com/articles/torts_s.htm
  5. https://www.lawcolumn.in/law-of-torts-definition-meaning-scope-nature-2/
  6. https://www.toppr.com/guides/legal-aptitude/law-of-torts/nature-and-concept-of-tort/#:~:text=A%20tort%20is%20derived%20from,law%20is%20a%20civil%20wrong.
  7. https://blog.ipleaders.in/definitions-of-torts-and-its-characteristics/

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