Transcript
Law of Torts and Consumer Protection Act
Legal Remedies
Introduction
In the the law law of of tort torts s remed remedie ies s whi which ch can can be be avai availe led d by the the injured person can be divided as:
1.
2. Extra-judicial remedies.
Judicial Remedies and
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Judicial Remedies i.e. remedies by way of action at law.
These are mainly of three f three kinds:
Damages,
Injunction and
Specific restitution of property. property.
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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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Judicial Remedies
Tort Tort is a civil civil wro wrong ng for for whic which h the the remed remedy y is by way way of of an action for damages.
Damag Damages es repr repres esen entt the the pecu pecuni niar ary y rec recomp ompen ense se recoverable by process of law, by a person who has sustained an injury through the wrongful act or omission of another.
The obje object ct of of awar awardin ding g damag damages es is to to place place the the inju injure red d party in the position which he would have occupied; if the wrong had not been committed.
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A. Damages
General
Damag Damages es whic which h law law pres presume umes s to be the the nat natur ural al consequences of the defendant¶s acts are general damages whereas damages the law will not infer unless proved at the trial are special damages. damages.
e.g. e.g. med medica icall exp expen ense ses s incu incurr rred ed by by plain plainti tiff ff due due to to defendant¶s 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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and Special damages
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easure of damages
1.
The leading principle in considering the measure of damages is ³restitutio in integrum´. integrum´.
In Livingstone v. Rawyords Coad Co.,(1880) 5 App. Cas. 25 the court explained its meaning in the following words means:
³Wher ³Where e any any inj injur ury y is to to be comp compen ensa sate ted d by by damag damages es 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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Swaraj Motors Private Ltd. v. R.T. Raman Pillai, AIR Pillai, AIR 1968 Ker. 315
The Kera Kerala la Hig High h Court Court hel held d that that in cas case e of pers person onal al inj injur ury y 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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Shafiq v. Pramod Bhatia, Bhatia, AIR 1998 MP 142
The Madh Madhya ya Pra Prade desh sh High High Cour Courtt awar awarde ded d Rs. Rs. 84, 84, 000 000 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 T he 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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2. Remoteness of damage
The next next pri princ ncip iple le is is the the remot remoten enes ess s of dama damage ges. s.
It is based on the maxi maxim m µinjure on remota causa sed proxima spectatur¶. spectatur¶.
It preve prevents nts the plainti plaintiff ff from from reco recover vering ing any damages damages that that do not flow or arise as a direct consequence of the wrongful act complained of.
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3. Mitigation of damages
It mea means ns tha thatt in all all clai claims ms for for dama damage ges s whe wheth ther er ari arisi sing ng 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 loss or damag damage e with with whi which ch the the exe exerc rcis ise e of of reasonable care the plaintiff could have avoided, will be deemed too remote to be recoverable.
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Type of Damages
Dama Damage ges s are are of of the the foll follow owin ing g five kinds: kinds:
Nominal damages;
Con Contempt mptuous damag mages;
Real Real or Subs Substtanti antial al dama damage ges; s;
Exemplary damages;
Pro Prospective ive damag mages.
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1. Nominal Damages
Damag Damages es whic which h are are awar awarde ded d by the the Cou Court rt to to the the plai plaint ntiff iff not by way of compensation but by way of recognition of some legal rights of plaintiff plaintif f which the defendant has infringed are nominal damages.
Nomin Nominal al damag damages es are are avai availa lable ble for tort torts s which which are are actionable per se.
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Ashby v. White, White, (1703) 2 Ld. Ry. 938
In this this case case a rightfu rightfull voter¶ voter¶s s right right to vote vote was wrong wrongfull fully y 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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Constantine v. Imperial London Hotels Ltd. (1944) 1 KB 693
The owne ownerr of a hot hotel el wro wrong ngful fully ly refus refused ed a West West Indi Indian an Cricketer entry in their hotel. Although A lthough he suffered no loss, the wrongful exclusion was held to be tortuous, was given nominal damages.
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2. Contemptuous damages
Cont Contemp emptu tuou ous s dama damage ges s are are an an indic indicat atio ion n of of the the law law court expressing an opinion of the claim of the plaintiff or its disapproval of is conduct in the matter. They differ diff er from nominal damages as they may be awarded for any tortuous act whether actionable per se or not.
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3. Real or Substantial damages
Damag Damages es whic which h are are asse assess ssed ed and and awa award rded ed 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 Real or subs substa tant ntia iall dama damage ges s are are also also cal calle led d as as compensatory damages.
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4. Exemplary damages
Exempl Exemplar ary y dama damage ges s are are award awarded ed whe where re the there re has has bee been n great injury by reason of aggravating circumstances accompanying the wrong.
Exempl Exemplar ary y damag damages es are are awar awarde ded d not not by way way of of compensation for the plaintiff, but by way of punishment for the defendant.
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In Rookes v Barnard, Barnard, 1961 AC 1129, the Court laid down that exemplary or punitive damages can be awarded in three cases:
1.
Bhim Singh v. State of J & K, K, AIR 1986 SC 494
Bhim Bhim Sing Singh, h, MLA MLA of of J & K was was arre arrest sted ed when when he was was going to attend Assembly session. The Supreme Court considered it to be appropriate case to award exemplary damages.
Oppressive, arbitrary or unconstitutional action by servants of the Government
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2. Cases where the defendant¶s 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. Ltd. (1965) 1 All ER 954
The The cou court rt held held that that ³if ³if a per perso son n who who is poss posses esse sed d 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, m an, and that is the only man, against whom an award of exemplary damages can be made.´
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3.
Where exemplary damages are expressly authorised by the statute.
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5. Prospective damages
Damag Damages es whic which h are are likel likely y to res result ult fro from m the the wron wrongfu gfull act 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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Subhas Chandra v. Ram Singh, Singh, AIR 1972 Delhi 189
Appel Appella lant nt was was hit by by a bus bus driv driver er.. He suffe suffere red d sev sever eral al 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 T he Motor Claims Tribunal awarded him compensation amounting to Rs. 3,000 under the heading µprobable further loss¶. The T he amount of compensation on appeal was increased to Rs. R s. 7000 by the Delhi High Court.
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B. Injunctions
An inj injun unct ctio ion n is an an orde orderr of the the court court dir direc ecti ting ng the the doin doing g of some act or restraining the commission or continuance of some act.
The The inj injun unct ctio ions ns are are of of vari variou ous s kind kinds: s:
Temporary
Prohibitory and Mandatory Injunction
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a. Temporary and perpetual Injunction
Section 37, Specific Relief Act, 1963 defines temporary and perpetual injunction as follows:
³A temp tempor orar ary y inj injun unct ctio ion n is is such such as is is to con conti tinu nue e unti untill a specified time, or until the further order of the court.
A perpe perpetu tual al inj injun unct ctio ion n is one one by by which which the the defen defenda dant nt 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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Temporary
It is also also called called as µinterl µinterlocu ocutor tory y injunct injunction¶ ion¶.. It does 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. E.g. A and and B have have a dispu dispute te reg regar ardi ding ng tit title le ove overr a plot plot of land, which is in A¶s possession. B also claims clai ms 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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Injunction
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The inte intent ntio ion n is tha thatt the pro prope pert rty y shoul should d cont contin inue ue to to remain in its existing condition rather than being destroyed or wrongfully disposed of before the final f inal decisions
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Perpetual Injunction
If the the cour courtt after after goin going g into into the the matt matter er,, finds finds tha thatt the 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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b. Prohibitory and Mandatory Injunction
Prohibi Prohibitor tory y injunc injunctio tion n is self explan explanato atory ry.. It It means means an injunction which prohibits the defendants from doing some act which will interfere with the plaintiff¶s lawful rights.
e.g. e.g. cont contin inui uing ng acts acts of of tres trespa pass ss,, nui nuisa sanc nce. e.
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Mand Mandat ator ory y inju injunct nction ion is an ord order er whi which ch req requi uire res s the the defendant to do some positive act.
e.g. e.g. pulli pulling ng down down a wall wall which which caus causes es obst obstruc ructio tion n to the the plaintiff¶s right of light.
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C. Specific Restitution of Property
When When one one is wro wrong ngful fully ly disp dispos osse sess ssed ed of his his movab movable le or or immovable property, property, the court may order that the specific specif ic property should be restored back to the plaintiff.
e.g. e.g. acti action on for ejectmen ejectment, t, the recove recovery ry of of chatt chattels els by an an action for detinue etc.
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As per section section 6 of the Specific S pecific Relief Act, 1963 a person who is wrongfully dispossessed of immovable property is entitled to recover the immovable property.
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As per section section 7 of the Specific S pecific Relief Act, 1963 a person who is wrongfully dispossessed of movable property is entitled to recover the movable property.
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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 fundam ental rights. The High Courts have in addition jurisdiction to enforce other legal rights.
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M.C. Mehta v. Union of India, India, (1987) 1 SCC 395 The Supreme Court held that the power conferred by these provisions is not merely injunctive injuncti ve i.e. preventive but also remedial and includes a power to award compensation, interim or final, in appropriate cases. It further held that ³ordinarily, these provisions are not to be used as a substitute for a suit for f or 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, K, (1985) 4 SCC 677
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Furth Further er,, the the Supr Supreme eme Cour Courtt has has enlar enlarge ged d the the doctr doctrine ine 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 m ember 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, India, (1984) 3 SCC 161; S.P. Gupta v. Union of India, India, (1984) 3 SCC 161; Peoples Union for Democratic Rights v. Union of India, India, (1982) 3 SCC 235]
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Extra-Judicial Remedies
Followi Following ng extraextra-jud judicia iciall remed remedies ies can be availe availed d by the plaintiff.
Exp Expulsion ion of of tre trespasser;
Re-entry on la land;
Reception of Go Goods;
Aba Abatemen ment of Nu Nuisance;
Dis Distress Dama Damag ge Fe Feasant
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1. Expulsion of Trespasser
A perso person n can can resort resort to legi legitima timate te force force in orde orderr to to repe repell an intruder or trespasser provided the force used by him does not transgress the reasonable limits of the occasion i.e. he mustn¶t use disproportionate di sproportionate force.
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Scott v. Mathew Brown & Co. (1885) 51 LT 746
The rightfu rightfull owne ownerr of of prope property rty of is is entit entitled led to use use forc force e in in ejecting a trespasser so long as he does him no personal injury.
Edwick v. Hwkes, Hwkes, (1881) 18 Ch D 199
While ejecti ejecting ng a tresp trespasse asser, r, the right rightful ful owner owner of of prope property rty should not resort to violence.
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2. Re-entry on land
A man man wro wrong ngful fully ly dispo dispose sed d of of his his land land may may reta retake ke its its possession, if he can do so in a peaceful manner and without the use of force.
Hemmings v. Stoke Poges Golf Club, Club, (1920) 1 KB 720
If an an owne ownerr of lan lande ded d prop proper erty ty find finds s a tres trespa pass sser er on his 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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Section 6 of the Specific S pecific 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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3. Reception of Goods
A perso person n enti entitle tled d to to the the immedia immediate te posses possessio sion n of chat chattels tels 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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4. Abatement of nuisance
Abate Abatemen mentt mea means ns remov removal al of of the the nuisa nuisanc nce e by by the part party y injured.
It is is justi justifia fiable ble prov provide ided d it must must be pea peace ceab able le,, with without out danger to life or limb and after notice to remove the same, if it is necessary to enter another¶s 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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Lemmon v. Webb, Webb, (1895) AC 1: Putraya v. Krishna ota, (1934) 40 MLW 639 Gota,
The occu occupi pier er of lan land d may may cut off the the over overha hang ngin ing g branches of his neighbour¶s trees, or sever roots which have spread from these trees into his own land.
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Someshwar v. Chunilal, Chunilal, (1919) 22 Bom LR 790
One One can canno nott cut cut the the bran branch ches es if the the tre trees es sta stand nd on on the the land of both parties.
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Raghuwath Patnaik v. Dullabha Behera, Behera, ILR 1951 Cut 522
Where Where the roots roots of tree trees s origin originall ally y plan planted ted by defenda defendants nts in their own land had penetrated into plaintiff¶s land wherefrom fresh trees had sprung up and the defendants cut and removed such trees from f rom plaintiff¶s 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 comm on 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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5. Distress Damage Feasant
µDistress¶
µFeasant¶
µDamages¶
means a right to retain.
means an object which has done a wrong.
means the loss caused to the owner or the
occupier.
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Distress damage feasant is a remedy by which, if cattle or other things be on a man¶s land encumbering it or otherwise doing damage there, he may summarily summ arily 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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e.g. e.g. whe where re the the own owner er or or occu occupi pier er of the the lan land d find finds s any 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. him .
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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 one¶s land and which is not then in the control of any other person.
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India
In Ind India ia the the rig right ht of of distr distress ess damag damage e feas feasan antt wou would ld be be held to exist, except under express ex press law. Cattle Trespass Act, 1871 contains special provisions regarding the impounding of cattle taken trespassing and doing damage.
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A pers person on on who whose se lan land d cat cattl tle e tres trespa pass ss and and do do damag damage e is authorised to take them to a cattle pound within 24 hours of the seizure.
He doe doesn sn¶t ¶t hav have e the righ rightt of furt furthe herr dete detent ntio ion n or sale. sale.
On paym paymen entt of of the the poun pound d fees fees to the the pou pound nd keepe keeper, r, the the owner of the cattle can get his cattle released. The injured party doesn¶t get any part of such pound fee.
Thus Thus the the said said legis legisla lati tion on has has impl implie iedl dly y taken taken away away the the right of distress damage feasant.
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Thank
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You!
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