Ilma Khan

Roll No:39
BA.LL.B
Law of Torts

Submitted To: Mr. Owais Farooqui

 Acknowledgement
I would like to express my special thanks of gratitude to my teacher Mr.
Owais Farooqui who give me the opportunity to do this wonderful
project on the topic of Development of law of torts in India and its
case of codification which also helped me in lot of research and I came
to know about so many new things.

I am really thankful to them.

Secondly, I would also like to thanks my Parents and Friends who
helped me a lot in completing this project within the limited time I am
not making this project not only for marks but to also increase my
knowledge.
Thanks again to all who helped me.
Content
1. Introduction.
2. What is law of torts?
3. Essential elements of torts.
4. Development of law of tort in India.
5. Conclusion.
Introduction.
The word tort is of French origin and is equivalent of the English word wrong. It is derived from
the Latin word tortum which means twisted or crooked. It implies conduct that is twisted or
crooked.1 Tort is commonly used to mean a breach of duty amounting to a civil wrong .Salmond
defines tort as 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. A tort arises due to a person’s duty to others which is created by one
law or the other. A person who commits a tort is known as a tortfeasor or a wrongdoer. Where
they are more than one, they are called joint tort feasor Their wrongdoing is called tortuous act
and they are liable to be sued jointly and severally.
The law of torts or civil wrongs in India is thus almost wholly the English law which is
administered as rules of justice, equity and good conscience. The Indian courts, however, before
applying any rule of English law can see whether it is suited to the Indian society and
circumstances. The application of the English law in India as rules of justice, equity and good
conscience has, therefore, been a selective application. Further, in applying the English law on a
particular point, the Indian courts are not restricted to the common law. The rules of English law
are to be applied so far as they are applicable to Indian society and circumstances. When in a given
case, statutory or customary law does not exist; Courts in India will be guided by principles of
justice, equity and good conscience. 2 Jurists in England and in India have often demanded that the
law of Torts be reduced to a statutory form. The advantage of such a step would be that the law
would become definite and compartmentalized. However, one must not forget that this branch of
the law has evolved out of judicial decisions, that its very basis is case law (both English and
Indian), and perhaps more harm than good may be done to the development of this branch of the
law by reducing it to a statutory code. In recent times, some parts of the law of torts have been
codified, as for example, The Fatal Accident Act, The Workmen’s Compensation Act, The
Employers’ Liability Act, etc. However, the major portion of the field of this branch of the law is
still based on judicial decision.

1 Dr. R.K.Bangia,Law of Torts(Allahabad Law Agency, Haryana ,24th edn.,2017).

2 Dr. Avtar Singh, Introduction to law of Torts((Kamal Law House, Calcutta, 5th edn.,1998).
What is law of torts?
• The word tort has been derived from a Latin word “tortum” which means twisted or
crooked. According to Salmond, “Tort is a civil wrong for which the remedy is a common
law action for unliquidated damages, and which is not exclusively the breach of contract,
or, the breach of trust, or, other merely equitable obligation.” 3
• It is different from breach of contract and trust. Tort is when the act of one party causes
some harm to the other party due to negligence, carelessness on the part of another party.
The one who sues is known as ‘plaintiff’ and the one who is sued is known as
‘defendant’.
• The person who causes such harm shall be made liable to pay compensation to the
injured party (plaintiff), this compensation can be in the form of money. This money
received in the form of compensation is known as ‘damages. In order to claim damages,
there must be some breach of duty towards plaintiff which resulted in such injury.
• Even if the harm which is caused was not intentional but due to carelessness or
negligence, then also the other party can be sued. Tort allows people to hold the other
person accountable for the injuries suffered by them.

3 https://blog.ipleaders.in/an-insight-of-law-of-torts-in-india.
Essential elements of torts.

To constitute a tort, it is essential that the following two conditions are satisfied:

1.There must be some act or omission on the part of the defendant, and
2. The act or omission should result in legal damage (injuria), which means violation of a legal
right vested in the plaintiff.

1. Act or omission
In order to make a person liable for a tort, he must have done some act which he was not
expected to do, or, he must have omitted to do something which he was supposed to do.
Either a positive wrongful act or omission which is legally made, will make a person liable.

2. Legal damage
In order to be successful in an action for tort, the plaintiff has to prove that there has been a legal
damage caused to him. The sum of money awarded by court to compensate damage is called
legal damage.4 Damage means the loss or harm causes to be suffered by a person as a result of
some wrongful act to another. Legal damage is not the same is actual damage. Every
infringement of plaintiffs private right or unauthorized interference with his property is a legal
damage. There must be violation of legal right in cases of torts.

The real important for legal damage is illustrated by two maxims only:

• Injuria sine damnum.

• Damnum sine injuria
.

Injuria sine damnum: Injuria sine damnum means violation of a legal right without
causing any harm, loss or damage to the plaintiff.

Ashby v white5 is a leading case explaining the maxim injuria sine

damnum.

4 Dr. R.K. Bangia,Law of Torts(Allahabad Law Agency,Haryana,24th edn., 2017).

5 Ashby v. white (1703) 92 ER 126.

 Facts: In this case plaintiff succeeded in his action, even though the defendants act did not
cause any damage. The plaintiff was a qualified voter at general election but the defendant a
returning officer wrongfully refused to take plaintiffs vote. No actual loss was suffered by such
refusal because the candidate for whom he was going to cast his vote won the election. Then
plaintiff filed a suit against defendant. 6

Judgment's court of law in his judgment held defendant liable.

Damnum sine injuria: It means damage which is not coupled with an unauthorized
interreference with the plaintiff's lawful right. Causing of damage, however substantial to
another person is not actionable in law unless there is also violation of a legal right of the
plaintiff.
Gloucester grammar school case7 explains damnum sine injuria.

Facts: In this case the defendant a school master set up a rival school to that of the plaintiffs.
Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence
per scholar per quarter.
Judgement: The court of law in his judgement held that the plaintiff had no remedy for the loss
thus suffered by him so defendant was not liable.

6 https://www.srdlawnotes.com/2015/10/essential-elements-to-constitute-tort.html.
7 Gloucester grammar school case(1410) Y.B. Hill HEN, 4 OF 47, P. 21, 36.
Development of Law of Torts in India.
In India the term tort has been in existence since pre-independence era. The Sanskrit word Jimha,
which means crooked was used in ancient Hindu law text in the sense of ‘tortious of fraudulent
conduct’. However, under the Hindu law and the 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 presently, is
mainly the English law of torts which itself is based on the principles of the common law of
England. However, the Indian courts before applying any rule of English law can see whether it
is suited to the Indian society and circumstances. The application of the English law in India has
therefore been a selective application.

The law of torts in India is mainly the English law of torts which is based on the principles of the
'common law.

This was made suitable to the Indian conditions in accordance with the principles of justice,
equity and good conscience. However, the application of tort laws in India is not a very regular
event and one can even go to the extent of commenting that tort as a law in India is far from
being looked upon as a major branch of law and litigation. In the Indian legal system, the
concept of punishment occupies a more prominent place than ‘compensation’ for wrongs.
It has been argued that the development of law of tort in India need not be on the same lines as in
England.

In M.C. Mehta v. Union of India, 8 justice Bhagwati said, “we have to evolve new principles and
laydown 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.

8 M.C. Mehta v. Union of India(1987 SCR (1) 819).

Conclusion.
• The tort law in India is not unnecessary but definitely requires development. The reasons for slow
development should be looked upon and further amendments must be made.
• The fee involved in filing a case should be reduced so that every individual who suffers has a court
to approach. As of now, poor people don’t even complain about the wrongs that happen to them.
• The elimination of difficulties will help in the growth of the nation
• If these lacunae are removed, tort litigation will certainly witness a growth in India.