For a law aspirant, torts might sound Greek. But it is one of the most important legal topics for law entrance. This article discusses what torts is, its origin and the Law of Torts in India.
According to Salmond the law consists of rules recognized and acted on by courts of justice. But before the state has emerged, the law was enforced by a person whose right has been violated with the assistance of family and clans. Sir Henry Maine remarked this as the penal law of ancient communities is not a law of crimes. It is the law of wrongs in the modern world and is known as the law of torts.
The law of torts in India is a body of law that addresses and provides remedies for non-contractual acts of civil wrongdoings. A person suffering legal damage may be able to use tort law to receive compensation for those injuries from someone who is legally responsible or liable. 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. Everyone is expected to behave in a straightforward manner and when one deviates from this straight path into crooked ways he has committed a tort. 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 redressal for. Usually, the injured party in a tort action is entitled to claim un-liquidated damages (i.e. compensation that has not been previously determined/specified or agreed between the parties) and will be decided in a court of law by the judge based on the facts, circumstances and the injury suffered by the party who approaches the court.
Essentials of Law of Torts
Act/Omission and a Breach of Duty
To constitute a tort there must be a demonstration which can either be negative or positive. There must be some rupture of obligation to constitute such wrongful act or omission. It implies that there was an obligation to do or not to complete a specific activity, or to carry it on in a defined way in which a sensible man is relied upon to act in specific situations. For instance, an industry working for toxic plants has merely put a stop sign for children, however, neglects to put legitimate fencing and one of the kids eats a product from that toxic plant and kicks the bucket, at that point the company can be held responsible for such recklessness and neglect. A man can't be held accountable for social or good off-base. For instance, in the event that an individual neglects to help a starving man then he can't be held responsible since it is ethically wrong except if some legitimate obligation can be demonstrated.
The final ingredient in constituting a tort is the rupturing of lawful obligation. The legitimate right(s) vested with the offended party ought to have been broken i.e. certain acts or oversight have brought about the transgression of lawful duty. When there is an omission or violation of legal duty by an act, the party who has incurred damages is eligible to seek relief from court and claim damages for their loss. Legitimate damage can be understood clearly with the assistance of following maxims:
1.Injuria sine damnum
"Injuria" implies unapproved obstruction with the privileges of the offended party. "Damnum" implies damage or misfortune endured as far as solace, monetary terms, and wellbeing and so on are considered. At the point when there is an infringement of lawful appropriate with no damage to the offended party, the offended party can approach the court. In Ashby v White, the offended party was kept away by the respondent, 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 malevolent act of the respondent was significant so the court granted exemplary damages of Rs. 50,000 to Bhim Singh. .
2. Damnum sine injuria:
According to this maxim, there is some damage caused to the offended party with no breach of duty towards offended party's legitimate right. A man cannot seek relief in law regardless of whether the damage is caused because of the ponder act of the respondent, as long as the other party is practicing his legitimate right. In the Gloucester Grammar School, a litigant set up a school precisely before the school of the offended party. The offended party endured misfortune in view of the adversary school as he needed to bring down the expenses and numerous understudies took confirmation in litigant's school. There is no cure accessible for the misfortune endured by him. The respondent has not done anything in abundance of his legitimate right.
Origin of Law of Torts
Prior to the French William the Conqueror’s 1066 Norman conquest of England, the legal system was somewhat haphazard, conducted on a more-or-less case-by-case basis. After 1066, eminent judges were delegated to travel about a given region in order to absorb those village laws which had developed over two centuries. Benefiting by this information, these judges noted and implemented precepts they deemed most fair-minded into their own court findings. In time, when referred to often enough, these cases became what are now called legal precedents. Sessions during which these judges conducted trials were dubbed "assizes", or in modern terms, “sittings". Even now, the place from which a judge renders verdicts and sentences is called “the bench”. Once established, these precedents were meant to be applied equally to every member of society, from a lord to a serf, bringing about the term common law. After the Norman Conquest, fines were paid only to courts or the king, and quickly became a revenue source. A wrong became known as a tort or trespass, and there arose a division between civil pleas and pleas of the crown.
The law of Torts in India came through England. After the Norman Conquest, French became the spoken language in England’s judiciary and thus many of the English law’s technical terms owe their origin to French and tort is one of them. The term ‘tort’ is based on the concept that there are certain rights for everyone in society. The purpose of this tort law was to enforce rights and duties.
Law of Torts in India
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 is mainly the English law of torts which itself is based on the principles of the common law of England. 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.
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 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.
In a more recent judgement of Jay Laxmi Salt Works (p) ltd. v. State of Gujarat, Sahai, J., observed: “truly speaking the entire law of torts is founded and structured on morality. Therefore, it would 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 tortious liability by court would be conducive”.
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 creating controversy.