Introduction to Law of Tort

Definition

The law of torts in India is a body of law that addresses and provides remedies for civil
wrongdoings. A person suffering legal damage may be able to resort to tort law to receive
compensation for those injuries from the party which is liable for the wrongful loss. The term
tort is the French equivalent of the English word “wrong” and of the Roman law term
“delict”. The word tort is derived from the Latin word “tortum” which means twisted or
crooked or wrong. Hence tort is a conduct which is twisted or crooked and not straight. The
person who commits the act is called a tortfeasor.

“Torts” are “civil wrongs” that the injured party can seek legal remedy for. Usually, a tort
action is filed to claim un-liquidated damages (i.e. compensation that is not pre-determined)
and will be determined in a court of law by the judge based on the facts, circumstances and
the injury suffered by the party.

Origin of Law of Torts

The law of Torts in India came through common law. After the Norman Conquest, French
became the spoken language in England’s judicial system and thus many of the Common
law’s legal terms trace their origin to French and tort is one of those terminologies. The term
‘tort’ is based on the concept that there are certain civil rights for everyone in society. The
purpose of this tort law was to protect or guard the exercise of those rights and duties.

Law of Torts in India

Under the Hindu and the Muslim personal laws, tort has a much shallow conception than the
tort of the Common law. The penal provisions for crimes in these systems occupied a more
prominent place than damages for wrongs. The law of torts in India is mainly the English law
of torts which itself is based upon the principles of the common law of England. This was
made suitable to the Indian conditions relying on the principles of justice, equity and good
conscience and as amended by the legislature and judicial precedents. Its establishment is
linked with the British courts in India.

In M.C. Mehta v. Union of India, Justice Bhagwati said, “we have 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
reference 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 have to build
our own jurisprudence”.
It has also been held in a case that section 9 of The Code of Civil Procedure, which enables
the civil court to try all suits of a civil nature, impliedly confers jurisdiction to apply 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.

The law of Torts in India is a relatively new common law development supplemented by
codifying statutes including statutes governing damages. While India generally follows the
UK approach, there are certain differences which may indicate judicial activism, hence tort
has an ever-widening scope due to the efforts of the judiciary involved in setting precedents
to create a well-founded Tort Law in India which would be fit according to the social,
economic and cultural norms in India.

Essentials of Law of Torts

Act/Omission and a Breach of Duty

To constitute a tort there must be some breakdown of obligation to constitute such wrongful
act or omission. For instance, an industry working for toxic plants has merely put a stop sign
board, however, neglects to put proper fencing and a kid ate a product from that toxic plant
and got poisoned, at this instance the company can be held liable for such negligence. A man
can't be held liable for moral omissions. For instance, If an individual neglects to serve a
starving man, he cannot be held responsible for such negligence since it was wrong of moral
nature except that a legitimate obligation can be traced.

Legitimate Damage

The final ingredient in constituting a tort is the rupturing of lawful obligation. The right(s)
vested with the offended party ought to have been violated i.e. certain acts or omission have
brought about the breach of lawful duty. Whenever there is a wrongful loss due to an act or
omission, the plaintiff is eligible of seeking compensation for damage When there is an
omission or violation of legal duty by an act, the party who has incurred damages is eligible
claim damages for their loss. Legitimate damage can be understood clearly with the
assistance of following maxims:

1. Injuria sine damnum

"Injuria" means no-consented interference to the enjoyment of the offended party. "Damnum"
implies damage or misfortune endured, monetary terms, and wellbeing and so on are
considered. At the point when there is an infringement of lawful right with no actual damage
to the plaintiff, the offended party may sue for damages.
In Ashby v White, the offended party was kept away by the defendant, a returning officer.
The offended party was a qualified voter at the parliamentary election but because of
detainment, his voting right was abused. The offended party sued the litigant for infringement
of his lawful right. Since there is an injury in that spot, it is likewise that a cure must exist for
it.

Also, in Bhim Singh v The State of J&K, the offended party was an MLA of J&K who was
kept wrongfully by the police while he was going to the Assembly session. The basic right of
individual freedom was disregarded and besides this he was not exhibited before the judge
inside the essential time frame. Here the wrongful and mala fide act of the defendant was
significant so the court granted exemplary damages of Rs. 50,000 to Bhim Singh, the
plaintiff.

2. Damnum sine injuria:

According to Damnum sine injuria, there is some injury caused to the plaintiff with no breach
of duty towards plaintiff’s legitimate right. A party cannot seek relief in law regardless of
whether the damage is caused due to the negligent act of the defendant, as long as the other
party is practicing his legitimate right without any obstruction.

In the Gloucester Grammar School, the defendant set up a school precisely before the school
of the offended party. The offended party suffered injury in view of the competition as he
needed to bring down the expenses and numerous under performance took confirmation in
defendant's school. There is no remedy for the injury endured by him. The defendant has not
done anything except for acting on his legitimate right.

In Town area committee v Prabhu Dayal, a suit for compensation was field by the plaintiff
against the town area committee for the demolition of his constructions protruding on the
road without due notice, the court found that the plaintiff himself was guilty of constructing
the building illegally without obtaining proper sanction from town Area committee. The High
Court held that demolition of an unauthorised building is not injuria to the owner and
therefore despite the damage he cannot get compensation (damnum sine Injuria).

Legal remedy

The maxim ‘ubi jus ibi remedium’ i.e. where there is right, there is a remedy, means that
whenever a right is violated, the person whose right has been infringed has a remedy against
the person so violating his right. A tort is a civil wrong for which the remedy is an action for
unliquidated damages. Thus, the main remedy for a tort is an action for damages. There are
other remedies such as specific restriction and injunction. But, an action for unliquidated
damages is an essential characteristic of remedy for tort. It is mainly the right to damages
which brings such wrongful acts within the category of torts.