Law of Torts and Consumer Protection Act

Legal Remedies
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Associate Professor
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Introduction
In the law of torts remedies which can be availed by the
injured person can be divided as:
1. Judicial Remedies and
2. Extra-judicial remedies.
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Associate Professor
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Judicial Remedies i.e. remedies by way of action at law.
These are mainly of three kinds:
Damages,
Injunction and
Specific restitution of property.
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Associate Professor
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Extra-judicial remedies i.e. remedies availed by party
himself without the aids of law.
These are:
Expulsion of trespasser,
Re-entry on land,
Reception of goods,
Distress of damage feasant, and
Abatement of nuisance.
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Associate Professor
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Judicial Remedies
Tort is a civil wrong for which the remedy is by way of an
action for damages.
Damages represent the pecuniary recompense
recoverable by process of law, by a person who has
sustained an injury through the wrongful act or omission
of another.
The object of awarding damages is to place the injured
party in the position which he would have occupied; if the
wrong had not been committed.
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Associate Professor
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A. Damages
General and Special damages
Damages which law presumes to be the natural
consequences of the defendants acts are general
damages whereas damages the law will not infer unless
proved at the trial are special damages.
e.g. medical expenses incurred by plaintiff due to
defendants negligent driving will give general damages,
whereas if he claims nervous shock, then he has to prove
and will get special damages.
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Associate Professor
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easure of damages
1. The leading principle in considering the measure of
damages is restitutio in integrum.
In Livingstone v. Rawyords Coad Co.,(1880) 5 App.
Cas. 25 the court explained its meaning in the following
words means:
Where any injury is to be compensated by damages in
settling the sum of money to be given for reparation of
damages you should as nearly as possible get that sum
of money which will put the party who has been injured,
or who has suffered in the same position as he would
have been in, if he had not sustained the wrong for which
he is now getting his compensation or reparation.
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Associate Professor
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Swaraj Motors Private Ltd. v. R.T. Raman Pillai, AIR
1968 Ker. 315
The Kerala High Court held that in case of personal injury
arising from accident, the plaintiff is entitled to expenses
which he actually and reasonably incurred for the medical
treatment and incidental matters upto the date of
institution of the suit. He can recover as special damages
under this head only the amount so determined. He is
entitled to claim loss of professional income.
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Associate Professor
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Shafiq v. Pramod Bhatia, AIR 1998 MP 142
The Madhya Pradesh High Court awarded Rs. 84, 000 as
compensation to the plaintiff wherein an accident caused
50% permanent disability and shortened the leg by one
inch. The claimant was not able to carry on his business
of sale of cloth by taking round from place to place. The
principle in this regards is that damages are intended to
put the plaintiff in the same position as he would have
been if he had not received the injury.
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Associate Professor
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2. Remoteness of damage
The next principle is the remoteness of damages.
It is based on the maxim injure on remota causa sed
proxima spectatur.
It prevents the plaintiff from recovering any damages that
do not flow or arise as a direct consequence of the
wrongful act complained of.
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Associate Professor
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3. Mitigation of damages
It means that in all claims for damages whether arising
from contract or tort, a duty is cast upon the plaintiff to
mitigate or minimise the damages to take all reasonable
precautions to reduce the amount of loss or damage
arising from the wrongful act of the defendant.
Any loss or damage with which the exercise of
reasonable care the plaintiff could have avoided, will be
deemed too remote to be recoverable.
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Associate Professor
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Type of Damages
Damages are of the following five kinds:
Nominal damages;
Contemptuous damages;
Real or Substantial damages;
Exemplary damages;
Prospective damages.
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Associate Professor
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1. Nominal Damages
Damages which are awarded by the Court to the plaintiff
not by way of compensation but by way of recognition of
some legal rights of plaintiff which the defendant has
infringed are nominal damages.
Nominal damages are available for torts which are
actionable per se.
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Associate Professor
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Ashby v. White, (1703) 2 Ld. Ry. 938
In this case a rightful voters right to vote was wrongfully
and maliciously denied at an election. However the
candidate in whose favour he wanted to cast his vote
won the elections. He was awarded damages nominal in
nature.
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Associate Professor
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Constantine v. Imperial London Hotels Ltd. (1944) 1
KB 693
The owner of a hotel wrongfully refused a West Indian
Cricketer entry in their hotel. Although he suffered no
loss, the wrongful exclusion was held to be tortuous, was
given nominal damages.
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Associate Professor
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2. Contemptuous damages
Contemptuous damages are an indication of the law
court expressing an opinion of the claim of the plaintiff or
its disapproval of is conduct in the matter. They differ
from nominal damages as they may be awarded for any
tortuous act whether actionable per se or not.
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Associate Professor
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3. Real or Substantial damages
Damages which are assessed and awarded as
compensation for damage actually suffered by the
plaintiff, and not simply by way of mere recognition of a
legal right violated are called real or substantial damages.
Real or substantial damages are also called as
compensatory damages.
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Associate Professor
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4. Exemplary damages
Exemplary damages are awarded where there has been
great injury by reason of aggravating circumstances
accompanying the wrong.
Exemplary damages are awarded not by way of
compensation for the plaintiff, but by way of punishment
for the defendant.
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Associate Professor
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In Rookes v Barnard, 1961 AC 1129, the Court laid
down that exemplary or punitive damages can be
awarded in three cases:
1. Oppressive, arbitrary or unconstitutional action by
servants of the Government
Bhim Singh v. State of J & K, AIR 1986 SC 494
Bhim Singh, MLA of J & K was arrested when he was
going to attend Assembly session. The Supreme Court
considered it to be appropriate case to award exemplary
damages.
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Associate Professor
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2. Cases where the defendants conduct has been
calculated by him to make a profit for himself which may
well exceed the compensation payable to the plaintiff
Manson v. Associated News Papers Ltd. (1965) 1 All
ER 954
The court held that if a person who is possessed of
material which would be defamatory if published, and
who does to really believe it to be true at all, decides to
publish it simply because he can make a profit from
publishing it and because he reckons that any damages
he might have to pay would be so small that it would be
well worth it, then that is a man, and that is the only
man, against whom an award of exemplary damages
can be made.
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Associate Professor
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3. Where exemplary damages are expressly authorised
by the statute.
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Associate Professor
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5. Prospective damages
Damages which are likely to result from the wrongful act
of the defendant but they have not actually resulted at the
time when the damages are being decided by the Court.
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Associate Professor
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Subhas Chandra v. Ram Singh, AIR 1972 Delhi 189
Appellant was hit by a bus driver. He suffered several
injuries resulting in his permanent disability to walk
without a surgical shoe. Because of the disability he
could not take employment in certain avenues. The Motor
Claims Tribunal awarded him compensation amounting to
Rs. 3,000 under the heading probable further loss. The
amount of compensation on appeal was increased to Rs.
7000 by the Delhi High Court.
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Associate Professor
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B. Injunctions
An injunction is an order of the court directing the doing
of some act or restraining the commission or continuance
of some act.
The injunctions are of various kinds:
Temporary and Perpetual Injunction
Prohibitory and Mandatory Injunction
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Associate Professor
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a. Temporary and perpetual
Injunction
Section 37, Specific Relief Act, 1963 defines temporary
and perpetual injunction as follows:
A temporary injunction is such as is to continue until a
specified time, or until the further order of the court.
A perpetual injunction is one by which the defendant is
perpetually enjoined form the assertion of a right, or from
the commission of an act, which could be contrary to the
right of the plaintiff.
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Associate Professor
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Temporary Injunction
It is also called as interlocutory injunction. It does not
mean determination in favour of the plaintiff but simply
shows the concern of the Court that there is a substantial
question requiring consideration.
E.g. A and B have a dispute regarding title over a plot of
land, which is in As possession. B also claims to have
the title of the same plot. Case is pending before the
court; A begins with construction on the said spot. B goes
to court and Court orders temporary injunction..
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Associate Professor
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The intention is that the property should continue to
remain in its existing condition rather than being
destroyed or wrongfully disposed of before the final
decisions
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Associate Professor
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Perpetual Injunction
If the court after going into the matter, finds that the
plaintiff is entitled to the relief, the temporary injunction
will be replaced by a perpetual injunction. A perpetual
injunction is a final order and is issued after the full
consideration of the case.
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Associate Professor
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b. Prohibitory and Mandatory
Injunction
Prohibitory injunction is self explanatory. It means an
injunction which prohibits the defendants from doing
some act which will interfere with the plaintiffs lawful
rights.
e.g. continuing acts of trespass, nuisance.
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Associate Professor
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Mandatory injunction is an order which requires the
defendant to do some positive act.
e.g. pulling down a wall which causes obstruction to the
plaintiffs right of light.
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Associate Professor
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C. Specific Restitution of Property
When one is wrongfully dispossessed of his movable or
immovable property, the court may order that the specific
property should be restored back to the plaintiff.
e.g. action for ejectment, the recovery of chattels by an
action for detinue etc.
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Associate Professor
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As per section 6 of the Specific Relief Act, 1963 a
person who is wrongfully dispossessed of immovable
property is entitled to recover the immovable property.
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Associate Professor
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As per section 7 of the Specific Relief Act, 1963 a
person who is wrongfully dispossessed of movable
property is entitled to recover the movable property.
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Associate Professor
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Remedies under the Constitution
Articles 32 and 226 of the Constitution respectively
confer jurisdiction on the Supreme Court and the High
Courts for the enforcement of fundamental rights. The
High Courts have in addition jurisdiction to enforce other
legal rights.
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Associate Professor
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M.C. Mehta v. Union of India, (1987) 1 SCC 395
The Supreme Court held that the power conferred by
these provisions is not merely injunctive i.e. preventive
but also remedial and includes a power to award
compensation, interim or final, in appropriate cases.
It further held that ordinarily, these provisions are not to
be used as a substitute for a suit for compensation but
their recourse can be taken in exceptional cases.
E.g. Rudal Shah v. State of Bihar, ARI 1983 SC 1036;
Bhim Singh v. State of J & K, (1985) 4 SCC 677
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Associate Professor
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Further, the Supreme Court has enlarged the doctrine of
locus standing by laying down that where legal injury is
caused or legal wrong is done to a person or class of
persons, who by reason of poverty or disability or socially
or economically disadvantaged position cannot approach
a court of law for justice, any member of the public or
social action group acting bona fide can file a petition
under Article 32 or 226 seeking judicial redress and this
can be done even by addressing a letter to the court.
[See, Bandhua Mukti Morcha v. Union of India, (1984)
3 SCC 161; S.P. Gupta v. Union of India, (1984) 3 SCC
161; Peoples Union for Democratic Rights v. Union of
India, (1982) 3 SCC 235]
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Associate Professor
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Extra-Judicial Remedies
Following extra-judicial remedies can be availed by the
plaintiff.
Expulsion of trespasser;
Re-entry on land;
Reception of Goods;
Abatement of Nuisance;
Distress Damage Feasant
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Associate Professor
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1. Expulsion of Trespasser
A person can resort to legitimate force in order to repel an
intruder or trespasser provided the force used by him
does not transgress the reasonable limits of the occasion
i.e. he mustnt use disproportionate force.
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Associate Professor
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Scott v. Mathew Brown & Co. (1885) 51 LT 746
The rightful owner of property of is entitled to use force in
ejecting a trespasser so long as he does him no personal
injury.
Edwick v. Hwkes, (1881) 18 Ch D 199
While ejecting a trespasser, the rightful owner of property
should not resort to violence.
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Associate Professor
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2. Re-entry on land
A man wrongfully disposed of his land may retake its
possession, if he can do so in a peaceful manner and
without the use of force.
Hemmings v. Stoke Poges Golf Club, (1920) 1 KB 720
If an owner of landed property finds a trespasser on his
premises, he may enter the premises and turn the
trespasser out, using no more force than is necessary to
expel him, without having to pay damages for the force
used.
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Associate Professor
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Section 6 of the Specific Relief Act, 1963 and the
Bombay Mamlatdars Courts Act, 1906 (in the states of
Maharashtra and Gujarat), if one in possession of
immovable property is disposed, otherwise than by due
course of law, he may, within six months, sue to recover
possession without reference to any title set up by
another, which is left to be determined in a separate
action.
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Associate Professor
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3. Reception of Goods
A person entitled to the immediate possession of chattels
may recover them from any person who has then been in
actual possession and detain them, provided that such
possession was wrongful in its inception.
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Associate Professor
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4. Abatement of nuisance
Abatement means removal of the nuisance by the party
injured.
It is justifiable provided it must be peaceable, without
danger to life or limb and after notice to remove the
same, if it is necessary to enter anothers land to abate a
nuisance, or where the nuisance is a dwelling house in
actual occupation or a common, unless it is unsafe to
wait.
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Associate Professor
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Lemmon v. Webb, (1895) AC 1: Putraya v. Krishna
Gota, (1934) 40 MLW 639
The occupier of land may cut off the overhanging
branches of his neighbours trees, or sever roots which
have spread from these trees into his own land.
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Associate Professor
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Someshwar v. Chunilal, (1919) 22 Bom LR 790
One cannot cut the branches if the trees stand on the
land of both parties.
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Associate Professor
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Raghuwath Patnaik v. Dullabha Behera, ILR 1951 Cut
522
Where the roots of trees originally planted by defendants
in their own land had penetrated into plaintiffs land
wherefrom fresh trees had sprung up and the defendants
cut and removed such trees from plaintiffs land, it was
held that where the roots of a tress extended into the
lands of both owners and the tree derived its nourishment
from soils of both, it became the common property of both
though it might actually stand on the land of one of them
and consequently the plaintiff was entitled to half of the
value of the trees cut and removed by the defendants.
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Associate Professor
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5. Distress Damage Feasant
Distress means a right to retain.
Feasant means an object which has done a wrong.
Damages means the loss caused to the owner or the
occupier.
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Associate Professor
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Distress damage feasant is a remedy by which, if cattle
or other things be on a mans land encumbering it or
otherwise doing damage there, he may summarily seize
them, without legal process, and retain them impounded
as a pledge for the redress of the injury he has sustained.
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Associate Professor
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e.g. where the owner or occupier of the land finds any
cattle or any other cattles trespassing on his property and
unlawful on his land and causing damage, he has right to
seize and detain it and refuse release of it unless owner
pays compensation for the damages suffered by him.
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Associate Professor
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England
Section 7 of the Animals Act, 1971 has abolished the
remedy of distress damage feasant which substitutes a
right to seize, detain and sell livestock which has strayed
on to ones land and which is not then in the control of
any other person.
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Associate Professor
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India
In India the right of distress damage feasant would be
held to exist, except under express law. Cattle Trespass
Act, 1871 contains special provisions regarding the
impounding of cattle taken trespassing and doing
damage.
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Associate Professor
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A person on whose land cattle trespass and do damage
is authorised to take them to a cattle pound within 24
hours of the seizure.
He doesnt have the right of further detention or sale.
On payment of the pound fees to the pound keeper, the
owner of the cattle can get his cattle released. The
injured party doesnt get any part of such pound fee.
Thus the said legislation has impliedly taken away the
right of distress damage feasant.
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Associate Professor
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Thank You!