SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY)

(Established under Section 3 of the UGC Act 1956)

Re-accredited by NAAC with ‘A’ grade (3.58/4) Awarded Category – I by UGC

Program: BBA LLB

Batch: 2020 - 2025
Semester: 2
Course Name: Law of Torts including MV Accident and Consumer Protection Laws II
Seat No: 196094
PRN: 20010324114

INSTRUCTIONS

1. Mention your details only in the space provided above. If any other details
name, contact detail etc. are written anywhere else in the answer script it will
be treated as adoption of unfair means.
2. Use diagrams and sketches wherever required.
3. Submission will be done by the Google form provided by the examination
department and it will be in the word format only (.doc/.docx). Submission of
any other format will not be accepted.
4. Submission will not be accepted beyond the deadline given by the
examination department in each subject. Student will be marked absent in
case of late submission.
5. The answers need to be neatly typed. Formatting guidelines: Font size &
name: 12 & Times New Roman; Line spacing 1.5; Justified; Page size: A4; No
borders
6. Write your answer in your own words and do not copy paste from any source.
Read the question carefully and write your answer fulfilling the requirements
of the question.
7. Examiner may use plagiarism check software to find out the originality of the
assessment.
8. If the students copy from each other’s assignment, it will be considered as
unfair means case and performance will be treated as null and void for the
entire examination.
 9. File name should be Seat Number Example: 345006

Ques. 1(A)
In the given case, D, published an article stating P is a very poor man and that he was liable in a
Murder case and hence should be sent to jail. Though in reality it wasn’t P who was liable but P’s
relative who were involved in the murder case. P thereby files a suit for loss of reputation. The trail
court dismisses the plea of P as “he doesn’t possess any integrity or reputation.”
We can relate it with Dixon v. Holden (1869) Eq. 488, as in this case it was held that
“A man's reputation is his property, and if, possible, more valuable, that other property.”
Winfield defined defamation as "publication of statement which tends to lower a person in the
estimation of tight thinking members of society generally, or which makes them to shun or avoid that
person."
It is important to understand that defamation is a civil as well as a criminal offense. Regardless of his
economic, political, or religious status, a person can make a criminal complaint against the writer or
publisher, or sue him in a civil action for tort damages for the harm he has suffered. Defamation is
protected under Article 19 as a justified limitation on the fundamental right to free speech and
expression.
The two types of defamation actions recognized by English law are libel and slander. Libel
representation produced in some permanent medium, such as writing or printing a picture whereas
Slander is defined as the publication of a defamatory comment in a passing for or spoken words or
gestures. Slander is similar to rumors and gossip hurled at the ears of the audience.
Slander, unlike libel, is only a civil violation unless the words are blasphemous, seditious, or obscene,
in which case it is considered contempt of court. In India, the distinction indicated above has no
place. Libel and slander are treated the same in Indian criminal law; both are considered offenses.
Slander requires proof of genuine harm, whereas libel is actionable on its own. Furthermore,
numerous Indian judgments have held that slander and libel are actionable in and of themselves. The
statute of limitations for libel and slander actions is 1 year.
When defamation is actionable in and of itself, there are a few exceptions:
 Imputed adultery or unfaithfulness
 Imputed incompetence, dishonesty, or unfitness for any appointed job, office, profession,
etc.
 Assigning the plaintiff with a criminal offense
 Imputation of a contagious sickness to the plaintiff, preventing others from associating with
him or her

Essentials of Defamation
i. Defamatory statement - A defamatory statement is one that aims to injure the plaintiff's
reputation or character. The way society's properly thinking people view a remark
determines whether it is defamatory or not. The criteria to be applied are those of a good
citizen and a man of average intelligence. A remark is defamatory if it causes: (a) the
majority of citizens to shun or avoid a person as a result of the statement; or (b) a
significant and respectable proportion of society to think negatively of a person as a result
of the statement. It is defamatory when a remark causes anybody to feel hatred, contempt,
scorn, fear, dislike, or disesteem. No action for monetary damages can be brought for mere
insult. If, on the other hand, the offensive comments are likely to provoke ridicule and
shame, they are actionable. As in South India Railway Co. v. Ramakrishna I.L.R, 1890
the railway guard stated to the plaintiff in front of the other passengers, "I think you are
travelling with a fraudulent ticket." "I believe you are traveling with a fraudulent ticket,"
the train guard said to the plaintiff in front of the other passengers. The plaintiff was the one
who submitted the correct ticket. Given the circumstances of the case, it was ruled that the
guard's words were genuine and that there was no defamation.

ii. To the plaintiff, the statement should be implied - The defendants' newspaper proprietors
in Halton And Co. Jones 1910 published a false article in their newspaper that cast doubt on the
morality of a fictitious person - Artemous Jones. A libel claim was filed by a real person with
that name. The defendants were found guilty of the charges. The technique for an innocent
author or publisher to avoid accountability is outlined in Section 4 of the Defamation Act of
1952 (English). The defendant must prove that the statements he made were made in good faith
 and also that as soon as he became aware that the words he published resulted in the
defamation of the plaintiff, he made an offer of reparations.
Defamation is a harm to a person's reputation, and it is a legal right. Defamation of a deceased person
is not a crime. Impugning anything to a deceased person may constitute to defamation under criminal
law if the imputation would impair that person's reputation if that person were alive and is meant to
be harmful to the feelings of his family/other close relations.

iii. The words must be published - Publishing implies making the defamatory thing
known to someone other than the person who has been defamed. It is not defamation to
send derogatory letters to the plaintiff. Only when more than two people are engaged is
it considered defamation. As in Huth v. Huth (1915) K.B 32, if a third party reads a
letter intended for the plaintiff incorrectly, the defendant is not responsible. It is not a
publication since it is not permitted. In T J Ponnen v. Verghese AIR 1970 SC 1876,
the question was whether a letter from the husband to the wife containing defamatory
matter concerning the father-in-law could be proved in an action brought by the father-
in-law against his son-in-law. His wife had forwarded the letters to his father (M.C .
Verghese). The husband (Ponnen) argued that the letters he wrote to his wife are not
admissible in evidence under Section 122 of the Evidence Act. The husband is
responsible for defamation, but the defamatory comment must be shown using evidence
other than the wife's. It is crucial to recognize that communicating a defamatory matter
about one spouse to the other is adequate publishing.
As a result of the foregoing circumstances, it is established that D is liable for defamation, and the
Court erred in finding him not guilty. P, on the other hand, has the right to sue for lost profits. As a
result, D would be liable for punitive damages, because in cases when incarceration is used
intentionally, insultingly, oppressively, or recklessly with the intent to oppress and injure, the jury
may go above the standard of compensation. A jury has the power to penalize the wrongdoer,
including awarding exemplary or punitive damages. When a defendant's behavior is deliberately
indifferent to the rights of others, or when the defendant's conduct is purposeful or wanton
infringement of others' rights, punitive damages may be awarded.
Punitive damages have been awarded in order to dissuade the accused from repeating the same action.
If the action was malicious, punitive damages have been awarded in the majority of false
imprisonment cases. When an arrest is made with the knowledge that it is in violation of a court
order, punitive damages may be awarded.
Ques. 2(A)

a) No, the defendant is not liable for nuisance as he was just conducting his business activities
in the usual way and he was not the one who created the inconvenience but the customers
who were standing in queues in front of the neighboring shops.
We can also related it with Dwyer v. Mansfield, 1946 Case, where the defendant was a
shopkeeper who was allowed to sell fruits and vegetables under his license. At a time when
potatoes were few, he sold them according to the ration book. During this era of scarcity,
large lines of customers formed at the defendant's shop, which at times extended to the
highway, causing disruption to nearby businesses. The defendant was sued by the
merchants in the surrounding area. The defendant was found not liable because his actions
were not unreasonable because he was going about his business as usual during the potato
shortage. As a result of this case law, the defendant is not accountable in the
aforementioned situation.

b) The defendant is not liable in the given case and therefore there are no legal implications
upon him.

c) Essentials of Nuisance

i. Wrongful Act by the Defendant-

The Defendant must first do a wrongful act before the Action against Nuisance can be
brought. This could include any activity that, on the surface, appears to be illegal and
unreasonable in the view of a cautious person.

ii. Damage/Loss/Inconvenience caused to the Plaintiff-

The second need is that the Plaintiff suffers a substantial loss or inconvenience. Due of the
plaintiff's own sensitivity, the maxim "De minimis non curat lex" enters into play, which
states that law will not examine trifles or little damages alleged by the plaintiff. However, if
the defendant's action results in the plaintiff's Legal Rights being harmed, annoyance is
triggered.
d) Types of Nuisance

There are basically 2 types of nuisance:

i. Public Nuisance - A public nuisance established in a public place or on public

land, or harming the community's morality, safety, or health, is deemed a state
violation. Section 268 under Chapter XIV of Indian Penal Code the deals with
public nuisance and defines it as an act or illegal omission which causes any
common injury, danger or annoyance, to the people in general who dwell, or
occupy property, in the vicinity, or which must necessarily cause injury,
obstruction, danger or annoyance to persons who may have occasion to use any
public right.

Illustration: A public nuisance is blocking a public highway, which prevents a

large number of people from moving.

Case:
 Attorney General v. P.Y.A. Quarries, (1957)
Quarrying operations were carried out in such a way that dust and vibrations
from explosions were felt by nearby residents. A public nuisance, according to the
court, is "one that seriously affects the reasonable comfort and convenience of life
of a class of Her Majesty's subjects." Therefore, the defendant's actions were held
to amount to public nuisance.

ii. Private Nuisance – A private nuisance is unlawful interference with a person's use or
enjoyment of land, or some right over, or in connection with it. Private nuisance, as
contrast to public nuisance, is a conduct that affects a specific individual or individuals
rather than the general public.

Case:
  Foster v Warblington UDC (1906)

 The claimant was an oyster merchant who for many years had been in
occupation of oyster beds artificially constructed on the foreshore. The
claimant excluded everybody from the oyster beds, and nobody interfered
with his occupation of the oyster beds or his removal and sale of oysters
from them. However, the claimant could not prove ownership of the oyster
beds.
It was held that the claimant could bring an action in private nuisance
caused by the discharge of sewage by the defendants into the oyster beds.
The claimant was able to bring a claim of private nuisance because he was
in exclusive possession of the land even though he could not prove his title
to it

e) Case Laws

i. Municipal Council, Ratlam v. Vardhichand and others, 1980

Residents of a neighborhood inside the Ratlam Municipality who were suffering
from the odor and stink created by open sewers and public excrement by
surrounding slum-dwellers petitioned the Magistrate under Section 133 of the
Criminal Procedure Code to order the Municipality to discharge its responsibility to
the public. The Magistrate ordered the Municipality to draft a strategy for
eradicating the nuisance within six months. Hon’ble SC appreciate the use of S. 133
of Cr.P.C. by SDM and interpreted this nuisance as violation of Article 21 of the
residents.

ii. Southwark London Borough Council v Mills 1999

The landlords let flats in a communal block which had very poor soundproofing
resulting in the noises of everyday living being audible through the walls. It was
held by the House of Lords that the normal use of a residential flat cannot be a
nuisance and as the tenants were not liable for nuisance the landlord could not be
liable for authorising nuisance

iii. K. Ramakrishnan And Anr. vs State Of Kerala, 1999

 Petition highlighting the public health issue of the dangers of passive smoking in
public places is illegal, unconstitutional and violative of Article 21 of the
Constitution of India and urged the court to take appropriate and immediate
measures to prosecute and punish all persons guilty of smoking in public places
treating the said act as satisfying the definition of 'public nuisance' as defined under
Section 268 of the Indian Penal Code.
The high court held that the tobacco smoking in public places falls within the
mischief of the penal provisions relating to "public nuisance" as contained in the
Indian Penal Code and also the definition of "air pollution" as contained in the
statutes dealing with the protection and preservation of the environment, in
particular the Air (Prevention and Control of Pollution) Act, 1981.

Ques. 3(A)

Medical negligence is regarded as one of the most serious problems in the globe, not only in our country. The
fundamental reason for this is that there have been numerous documented cases of an under-qualified medical
professional being investigated for failing to exercise reasonable care during a surgery, diagnosis, or other
procedure.

In the case of Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre and Ors., the Hon'ble
Supreme Court defined medical negligence as "22. Negligence. – Duties owed to the patient A person who
presents oneself as willing to provide medical advice or treatment implies that he has the necessary
competence and knowledge. A person who is consulted by a patient, whether or not he is a registered medical
practitioner, owes him various duties, including a duty of care in determining whether or not to take the case; a
duty of care in deciding what treatment to give; and a duty of care in administering that treatment. A breach of
any of these duties will establish a patient's negligence claim.”

In Vinod Jain vs. Santokba Durlabhji Memorial Hospital and Ors., the Hon'ble Supreme Court stated that the
test for negligence should be based on the fact that a doctor who has been accredited with a special skill or
competence but does not possess the highest expert skill should be able to exercise the skill of an ordinary
competent man in a similar situation. This is generally done for the greater good of the community, in order to
prevent doctors from prioritising their own safety over the safety of their patients.

Thus, there are 3 components of medical negligence:

1. Existence of legal duty : If one approaches another, trusting him to have a particular talent or
special knowledge about a specific situation, the second party is under an implicit legal duty to
exercise due care and act at least as his contemporaries would. As a result, the assertion that a
legal obligation can only be contractual is false. Carelessness is defined as a person's failure to
perform any task that was required of them, even if it was just and reasonable. When a patient
visits a doctor for his symptoms, he does not sign a formal contract, but there is an implied
contract, and any lack of adequate treatment may hold the erring doctor liable for breach of
professional duty.
2. Breach of Legal Duty : If the person using the skill does something that an ordinary wise man
would not have done in a similar situation or fails to do something that an ordinary sensible man
would have done, it is unquestionably a breach of legal duty. The criteria are not intended to be of
particularly high calibre, but rather of the type that would be expected of a man in the normal
course of therapy.
3. Damage caused by such Breach : The wrong, or the injury caused by such carelessness, must be
paid in monetary terms, and the courts use well-established principles to determine the exact
liquidated amount. It's critical to remember that there is no such thing as a universally applicable
standard. When granting compensation, the consumer forum must consider all relevant facts and
determine compensation in accordance with established legal principles of moderation. It is up to
the consumer forum to determine whether the compensation provided is reasonable, fair, and
appropriate based on the facts and circumstances of the case.

In this case, M became infected with the HIV virus as a result of hospital staff's medical negligence.
So, in this case, a medical professional or hospital will be held accountable for all actions taken
against patients when the necessary standard of care was not followed and the patient suffered as a
result. In proving a charge of negligence, the complainant bears the burden of proof. They must first
establish that the accused owed the public a duty of care and that this duty was breached.

The State Consumer Disputes Redressal Commission of Jharkhand ordered the opposing party to pay
the complainant Rs. 25,000 in compensation for mental anguish and physical harassment, as well as
Rs. 5,000 in litigation costs, in Jagdish Prasad Singh v. Dr. A.K.Chatterjee. The accused was found to
have failed to properly return the specific findings in the reports.

In this case, the party may file a negligence complaint with the appropriate State Medical Council,
which has the authority to take action against both the staff and the involved doctor by suspending or
cancelling his registration.
Civil Liability

A person who has been wronged may file a complaint with the consumer courts against both the
offender and the hospital. In Indian Medical Association vs. V.P. Santha, the Supreme Court ruled
that medical practitioners are covered by the Consumer Protection Act, 1986, and that the medical
services they provide are classified as services under section 2(1)(o) of the Consumer Protection Act.
Similarly, medical services will fall under the definition of services in section 2(42) of the new
Consumer Protection Act of 2019. Any matter involving medical negligence on the part of the service
provider would be considered under section 42(11) of the revised Consumer Protection Act, 2019.

Criminal Liability

Under various provisions of the Indian Penal Code, 1860, any person who acts negligently or rashly,
resulting in a threat to human life or personal safety, or results in the death of a person, is subject to
imprisonment and/or a fine. However, in a case of carelessness involving a criminal case, the court
has stated that the condition of "mens rea" must be demonstrated. To establish criminal responsibility,
it must be demonstrated that the accused did or did not do something that no other medical
professional in his or her normal senses and wisdom would have done or failed to do in the same
circumstances. The aggrieved party will first submit a complaint against the implicated individual or
persons with the local police authorities.
The Role of Judiciary in dealing with Medical Negligence cases under the Act.
In 1996, three reported decisions are available. The case of Indian Medical Association v. V.P.
Shantha and Ors is decided by a three-judge bench. The main issue before the Court was whether a
medical practitioner renders "service" and can be sued for "deficiency in service" before a forum
under the Consumer Protection Act of 1986. The Court addressed how a 'profession' differs from a
'occupation,' particularly in the context of performance of duties and, as a result, the occurrence of
negligence. The Court observed that medical professionals are not immune from being sued in
contract or tort (i.e. in civil jurisdiction) for negligence.
In Poonam Verma v. Ashwin Patel and Ors., a doctor who was registered as a medical practitioner
and was only allowed to practise homoeopathy prescribed an allopathic medicine to the patient. The
patient passed away. The doctor was found to be negligent and liable to compensate the deceased's
wife for her husband's death on the grounds that the doctor, who was only permitted to practise
homoeopathy, was under a statutory duty not to enter the field of any other system of medicine, and
because he trespassed into a prohibited field and prescribed allopathic medicine to the patient, causing
death, he was held liable.

The following is the goal of the Consumer Protection Act:

 To provide better and more comprehensive protection to consumers.
 To provide equipment to speed up the resolution of grievances.
 To create a system through which customers can seek redress.
 To give consumers more rights.
 Consumers' rights must be safeguarded.

The 1986 Consumer Protection Act's Scope

Except for those specifically exempted by the federal government, this Protection Act applies to all
goods and services in all sectors, whether public, private, or cooperative. The statute provides a forum
for a customer to file a complaint about a product, and the forum takes action against the responsible
provider, and the consumer is compensated for the inconvenience.