DEVELOPMENT OF TORTS IN INDIA

INTRODUCTION

Law of Torts UNIT I: Revision Notes for LL.B First Year

Introduction to the Law of Torts

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. 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 persons duty to others which is created by one law or the other. A person who
commits a tort is known as a tortfeaser, or a wrongdoer. Where they are more than one, they are
called joint tortfeaser. Their wrongdoing is called tortuous act and they are liable to be sued jointly
and severally.
The principle aim of the Law of tort is compensation for victims or their
dependants. Grants of exemplary damages in certain cases will show that
deterrence of wrong doers is also another aim of the law of tort.

Evolution of Law of Torts in India

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, 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.

Objectives of Law of Torts

to determine the rights between parties to dispute

to protect certain rights recognized by law
to prevent the continuation or repetition of a harm
to restore the property to its rightful owner

Scope of Tort
Tort & Contract
1.
2.

In a contract, the parties fix the duties themselves whereas in torts, the law fixes the duty.
A contract stipulates that only the parties to the contract can sue and be sued on it (privity of
contract) while in tort, privity is not needed in order to sue or be sued.
3.
In the case of contract, the duty is owed to a definite person(s) while in tort, the duty is owed
to the community at large i.e. duty in- rem.
4.
In contract remedy may be in the form of liquidated or unliquidated damages whereas in
tort, remedies are always unliquidated.
Tort & Crime
1.

In tort, the action is brought in the court by the injured party to obtain compensation
whereas in crime, proceedings are conducted by the state.
2.
The aim of litigation in torts is to compensate the injured party while in crime; the offender is
punished by the state in the interest of the society.
3.
A tort is an infringement of the civil rights belonging to individuals while a crime is a breach
of public rights and duties, which affect the whole community.
4.
Parties involved in criminal cases are the Prosecution verses the Accused person while in
Torts, the parties are the Plaintiff versus the Defendant.

Constituents of Tort
The law of tort is an instrument to enforce reasonable behavior and respect the rights and interests of
one another. A protected interest gives rise to a legal right, which in turn gives rise to a corresponding
legal duty. An act, which infringes a legal right, is wrongful act but not every wrongful act is a tort.
To constitute a tort or civil injury therefore:
1.
2.
3.

There must be a wrongful act or omission.

The wrongful act or omission must give rise to legal damage or actual damage and;
The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an
action for damages.

The wrongful act or omission may however not necessarily cause actual damage to the plaintiff in
order to be actionable. Certain civil wrongs are actionable even though no damage may have been
suffered by the plaintiff.
01. Wrongful Act
An act or omission that prejudicially affect ones legal right. Such legally violative wrongful act is called
as actus reus. Thus, liability for a tort arises when the wrongful act amounts to either an infringement
of a legal private right or a breach.
An act, which at first, appears to be innocent may become tortuous if it invades the legal right of
another person e.g. the erection in ones own land which obstructs light to a neighbors house. Liability
for a tort arises when the wrongful act amounts to an infringement of a legal right or a breach.
02. Damage

The sum of money awarded by court to compensate damage is called damages. Damage means the
loss or harm caused or presumed to be suffered by a person as a result of some wrongful act of
another. Legal damage is not the same as actual damage.
The real significance of legal damage is illustrated by two maxims namely:
Injuria sine damno and Damnum sine injuria
Injuria sine damno (Injury without damage)
It means violating of a legal right without causing any harm, loss or damage to the plaintiff. There are
two kinds of torts: firstly those torts which are actionable per se, i.e. actionable without the proof of
any damage or loss. For instance, trespass to land, is actionable even though no damage has been
caused as a result of the trespass.
Secondly, the torts which are actionable only on the proof of some damage caused by an act. For
successful actions the only thing which has to be proved is that the plaintiffs legal right has been
violated, i.e. there is injuria.
Case Law: Refusal to register a voter was held as and injury per-se even when the favorite candidate
won the election Ashby Vs. White (1703). This rule is based on the old maxim of law, Ubi jus ibi
remedium, which means that where there is a right, there is a remedy.
Damnum sine injuria (Damage without injury)
It means There may be an injury inflicted without any act of injustice. There is another term like it that
is damnum absque injuria, which means damage or harm without an injury in the legal sense. In
other words a loss or injury to someone which does not give that person a right to sue the person
causing the loss.
Case Laws:
In the case of Mayor & Bradford Corporation Vs. Pickles (1895), Pickles was annoyed by the
refusal of Bradford Corporation to purchase his land for their water undertaking. Out of spite, he sank
a shaft on his land, which had the effect of discoloring and diminishing the water of the Corporation,
which percolated through his land. The House of Lords held that the action of Pickles was lawful and
no matter how ill his motive might be he had a right to act on his land in any manner that so pleases
him.
In the case of Mogul Steamship Co. Vs. Me-Gregory (1892). Certain ship owners combined
together. In order to drive a ship-owner out of trade by offering cheap freight charges to customers
who would deal with them. The plaintiff who was driven out of business sued the ship-owner, for loss
caused to him by their act. The court held that a trader who is ruined by legitimate competition of his
rivals could not get damages in tort.
03. Remedy Development of Ubi jus ibi Remedium
The law of torts is said to be a development of the maxim ubi jus ibi remedium (there is no wrong
without a remedy). Whenever the common law gives a right or prohibits an injury, it also gives a
remedy. It is an elementary maxim of equity jurisprudence that there is no wrong without a remedy.
The maxim means only that legal wrong and legal remedy are correlative terms.

A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under the category
of wrongs for which the remedy is a civil action for damages. The essential remedy for a tort is an
action for damages, but there are other remedies also e.g., injunction, restitution, etc.
Case Law:
In the case of Abbot v. Sullivan, the court held that there is a right to receive a time-barred debt but
there is no remedy to recover it.

Foundations of Tortious Liability

Tortious liability arises from the breach of a duty primarily fixed by the law: such duty is towards
persons generally and its breach is compensated by an action for unliquidated damages.
Theory 1: By Winfield Law of Tort General Liability: all injuries done to another person are
torts, unless there be some justification recognized by the law
Theory 2: By Salmonds Pigeon Theory Law of Torts: there is a definite number of torts
(assault, battery, defamation) outside which liability in tort does not exist
Case Law:
Rougher, J., described in the case of John Munroe (Acrylics) Ltd. v. London Fire and Civil
Defence Authority, It is truism to say that we live in the age of compensation. There seems to be a
growing belief that every misforture must, in pecuniary terms at any rate, be laid at someone elses
door, and after every mishap, the cupped palms are outstretched for the solace of monetary
compensation.

General Elements of Torts

Act & Omission
To constitute a tort, there must be a wrongful act. The word act is used to include both positive and
negative acts i.e., acts and omissions. Wrongful acts which make a person liable in tort are positive
acts and sometimes omissions. They must be distinguished from natural calamities, and even from
mere thoughts and intentions.
Failure to do something in doing an act is a bad way of performing the act. For example, if a lawyer
gives an opinion without taking notice of the change in law brought about by a reported decision of the
Supreme Court, he would not be guilty of an omission but of performing the act of giving his opinion in
a bad way.
Where as an omission is failure to do an act as a whole. Generally, the law does not impose liability
for mere omissions. An omission incures liability when there is a duty to act. For example, a person
cannot be held responsible for the omission of not rescuing a stranger child whom he sees drowning
even though he can rescue him without any appreciable exertion or risk of harm to himself. But the
result would be different if a parent or guardian is failed to attempt to rescue the child. In that case, it
would be an omission as there is a duty to act.

Voluntary Acts & Involuntary Acts

A voluntary act may be distinguished from an involuntary act as only voluntary acts have liability.
Voluntary act can be understand based on its willed mascular contraction, its circumstances and its

consequences. For example, an act of murdering a person by shooting at him is one act and not
merely the muscular contraction of pressing the trigger.
An involuntary act does not give rise to any liability. For example, an involuntary act of trespass is not
a tort.
Omissions like positive acts may also be voluntary or involuntary.
In the case of Olga Tellis v. Bombay Municipal Corporation, the Supreme Court held that the
encroachments committed by those persons are involuntary acts in the sense that those acts are
compelled by inevitable circumstances and are not guided by choice.

Mental elements
A voluntary act can be held in strict liability if theres a presence of required mental element i.e.,
malice, intention, negligence or motive in addition to the other necessary ingredients of the torts are
present.

o Malice in Law and in Fact

Malice means spite or ill-will. However, in law malice has two distinct meanings such as: 1. Intentional
doing of a wrongful act and 2. Improper motive. In the first sense, malice is synonymous with intention
and in the second sense, malice refers to any motive which the law disapproves.
Malice with an intention of wrongful act is called as Malice in Law. It is also called as implied malice.
In a legal sense, malice means a wrongful act, done intentionally, without just cause or excuse. For
example, if a person give a perfect stranger a blow likely to produce death, the person do it out of
malice because, he do it intentionally and without just cause or excuse.
Malice with an improper motive is called as Malice in fact. It is also called as express malice. Malice
in fact is liable for malicious prosecution.
Wrongful acts of which malice is an essential element are:

Defamation
Malicious prosecution
Willful and malicious damage to property

o Intention, Negligence and Recklessness

Intention is an internal fact, something which passes in the mind and direct evidence of which is not
available. Theres a popular saying that it is common knowledge that the thought of man shall not be
tried, for the devil himself knoweth not the thought of man.
In general terms, negligence is the failure to use ordinary care through either an act or omission.
That is, negligence occurs when:
somebody does not exercise the amount of care that a reasonably careful person would use
under the circumstances; or

somebody does something that a reasonably careful person would not do under the
circumstances.
In the case of Dulieu Vs. White & Sons (1901), the plaintiff, a pregnant woman, was sitting behind
the counter of her husband?s bar when suddenly a horse was driven into the bar. Fearing her

personal safety, she suffered nervous shock and gave birth to a premature baby. In the
circumstances, the court held that the plaintiff was entitled to recover in negligence.
Recklessness is also called as gross negligence. Gross negligence means conduct or a failure to act
that is so reckless that it demonstrates a substantial lack of concern for whether an injury will result. It
is sometimes necessary to establish gross negligence as opposed to ordinary negligence in order
to overcome a legal impediment to a lawsuit. For example, a government employee who is on the job
may be immune from liability for ordinary negligence, but may remain liable for gross negligence.

o Motive
Motive is the ulterior object or purpose of doing an act. It differs from intention in two ways. First,
intention relates to the immediate objective of an act, whereas, motive refers to the ulterior objective.
Secondly, motive refers to some personal benefit of satisfaction which the actor desires whereas
intention need not be so.
For example, When A poisons B, the immediate objective is to kill B and so this is As intention. The
ulterior objective of A may be to secure Bs estate by inheritance or under a will executed by him and
this objective will be As motive. Motive is generally irrelevant in tort.
In the case of Mayor & Co. of Bradford v. Pickles, A sank a well on his land and thereby cut off
underground water-supply from his neighbour B, and Bs well was dried up. It was not unlawful for a
land-owner to intercept on his own land underground percolating water and prevent it from reaching
the land of his neighbour. The act did not become unlawful even though As motive in so doing was to
coerce B to buy his land at his own price. A, therefore, was not liable to B, however improper and
malicious his motive might be.

o Malfeasance, Misfeasance, Non-feasance

The term Malfeasance applies to the commission of an unlawful act. It is generally applicable to
those unlawful acts, such as trespass, which are actionable per se and do not require proof of
intention or motive.
The term Misfeasance is applicable to improper performance of some lawful act for example when
there is negligence.
The term non-feasance applies to the omission to perform some act when there is an obligation to
perform it. Non-feasance of gratuious undertaking does not impose liability, but misfeasance does.

M.C. Mehta v. Union of India

o Fault
If mental elements such as intention, negligence, malice or motive together with an act or omission
which is violative of a right recognized by law plays an important role in creating liability. Such tortious
liability has an element of fault to support it. But there is a sphere of tortious liability which is known as
absolute or strict liability, where the element of fault is conspicuously absent.
In the case of M.C. Mehta v. Union of India, the rule of strict liability is laid down that an enterprise
engaged in a hazardous or inherently dangerous activity is strictly and absolutely liable for the harm
resulting from the operation of such activity.

Tort law in India

From Wikipedia, the free encyclopedia

Tort law in India

National flag of Republic of India

Legal system
Common law
Sources of tort law
Common law
Statutes
Categories of tort law
Assault
Battery
False imprisonment
Negligence
Professional negligence
Contributory negligence
Defamation
Economic torts
Conspiracy

Fraud
Intentional interference
Restraint of trade
Land torts
Trespass
Nuisance
Rule in Rylands v Fletcher
Constitutional torts

Tort law in India is a relatively new common law development supplemented by codifying
statutes including statutes governingdamages. While India generally follows the UK approach,
there are certain differences which may indicate judicial activism, hence creating
controversy. Tort is breach of some duty independent of contract which has caused damage to
the plaintiff giving rise to civilcause of action and for which remedy is available. If there is no
remedy it cannot be called a tort because the essence of tort is to give remedy to the person who
has suffered injury.

Contents
[hide]

1Sources of law
1.1Statutes

o
o

1.2Common law

1.3Relevant local customs and practices

2Categories of torts
2.1Offences to the person

2.1.1Assault

2.1.2Battery

2.1.3False imprisonment

2.2Negligence

2.2.1Professional negligence

2.2.2Contributory negligence

2.3Defamation

2.4Economic torts

2.5Land torts

2.5.1Trespass to land

2.5.2Nuisance

2.5.3Rule in Rylands v Fletcher

2.6Constitutional torts

3Damages
o

3.1Calculation of damages

3.2Approach towards pain and suffering

3.3Punitive damages

4Tortious litigation
o

4.1Difficulties in the legal system

4.2Reforms

5Controversies
o

5.1Absolute liability

5.2Judicial activism

6Notes

7See also

8Further reading

8.1Cases

8.2Articles

8.3Books
9External links

Sources of law[edit]
Tort law in India, like her common law counterparts, stems from both statute and common law.

Statutes[edit]

Similar to other common law countries,[1] aspects of tort law have been codified.[2] Furthermore,
the Indian Penal Code criminalises certain areas of tort law.[3]

Common law[edit]
As tort law is a relatively young area of law in India, apart from referring to local judicial
precedents, courts have readily referred to case law from other common law jurisdictions, such
as UK,[4] Australia,[5] and Canada.[6]

Relevant local customs and practices[edit]

However, attention is given to local socio-cultural practices and conditions in applying foreign
legal principles. The legislature have also created statutes to provide for certain social conditions;
for example, due to the nature of Indian families, a statute was passed to simplify determination
of damages in the event of family members.[clarification needed][7]

Categories of torts[edit]
Offences to the person[edit]
Assault[edit]
Indian courts have held that to constitute assault it is not necessary that there should be some
actual hurt caused. A threat constitutes assault.[8]
The ingredients are set out below:[9]

Making of any gesture or preparation by a person in the presence of another.

Intention or knowledge of likelihood that such gesture or preparation will cause the
person present to apprehend that the person making it is about to use criminal force on him.

Battery[edit]
The criteria for battery is equivalent to that of criminal force[10] defined in Section 350 of the Indian
Penal Code.[11]

False imprisonment[edit]
False imprisonment "is the complete deprivation of his liberty for any time, however short, without
lawful cause ... There need not be any actual imprisonment in the ordinary sense." [12]
The ingredients of this tort are listed below: [13]

Restraint must be complete.

There must be no reasonable condition imposed by occupiers of premises.

There must be no reasonable and honest belief which would justify the confinement.

Negligence[edit]
In regard to negligence, Indian jurisprudence have approved the approach stated in Ratanlal &
Dhirajlal: The Law of Torts,[14][15] laying down three elements:

A legal duty to exercise "ordinary care and skill".

The breach of [the] duty caused by the omission to do something which a reasonable
man, guided by those considerations which ordinarily regulate the conduct of human affairs
would do, or doing something which a prudent and reasonable man would not do.
Resulting in injury to the plaintiff's person or property.

Professional negligence[edit]

The Indian approach to professional negligence requires that any skilled task requires a skilled
professional.[16] Such a professional would be expected to be exercising his skill with reasonable
competence.[17]
Professionals may be held liable for negligence on one of two findings:

He was not possessed of the requisite skill which he professed to have possessed.
He did not exercise, with reasonable competence in the given case, the skill which he did
possess.

The standard to be applied for judging negligence would be that of an ordinary competent person
exercising ordinary skill in that profession. It is not necessary for every professional to possess
the highest level of expertise in that branch which he practices.[17] Professional opinion is
generally accepted, but courts may rule otherwise if they feel that the opinion is "not reasonable
or responsible".[18]

Contributory negligence[edit]
Indian Courts recognise the concept of contributory negligence. Contributory negligence means
the failure by a person to use reasonable care for the safety of either of himself or his property,
so that he becomes blameworthy in part as an "author of his own wrong". [19]
In the absence of reasonable care on the part of the claimant, courts are likely to reduce the
liability of the injurer. "The rule of negligence with the defense of contributory negligence holds an
injurer liable if and only if he was negligent and the victim was not. In India, this rule requires
proportional sharing of liability when both parties were negligent. That is, the compensation that
the victim receives gets reduced in proportion to his or her negligence." [20]

Defamation[edit]
The tort of defamation in India has largely followed the approach taken by the UK. Indian courts
have endorsed the defences of absolute [21] and qualified privilege,[22] fair comment[23] and
justification.[24] In UK, if the defendant is only successful in proving the truth of some of the
several charges against him, the defence of justification might still be available if the charges not
proved do not materially injure the reputation.[25] While there is no such provision in India, the law
is possibly the same.[26] Recently, incidents of defamation in relation to public figures are
highlighted.[27]
However, in India, the weight of the authorities is for discarding between libel and slander and
making both of them actionable per se.[26] In UK, only libel and certain types of slander is
actionable per se.[28] Criminal libel in UK was abolished in 2010, [29] while both slander and libel
remain criminal offences in India,[30] making people liable not just to the extent of damages but
also undergoing imprisonment.[31] An injunction may also be granted to stop further publication of
defamatory material.[32]

Economic torts[edit]
Economic Torts seek to protect a person in relation to his trade, business or livelihood. [33]
While Indian courts has been reluctant to award damages for the economic torts of simple and
unlawful conspiracy as well as inducing breach of contract due to the confused state of the law,
[34]
the court has allowed damages for torts affecting economic interests under the conspiracy to
injure, and in doing so, referred to UK authorities on the matter.[35]
The courts have however been more willing to adopt the law in UK in areas such as the tort of
deceit,[36] unlawful interference with trade,[37] intimidation,[38] and malicious falsehood.[39]

Land torts[edit]
Land torts seek to prevent interference with land in the possession of another.[40] Interference
may take the form of entering land or part of it, or of remaining there after the withdrawal of
permission, or of dispossessing the occupant.[33]

Trespass to land[edit]
Trespass to land is any direct interference with land in the possession of another and is
actionable per se.[33] Examples of trespass are unauthorised entry to land, placing things on land
and inducing animals to enter.[41] Also, continuing trespass, which is actionable from day to day,
[42]
occurs when there is continuation of presence after permission is withdrawn. [43] The position
taken with regards to the elements of trespass is similar in the UK and India. [44]

Nuisance[edit]
Nuisance is a form of lesser interference with land. [33] It may be private or public, and private
nuisance has come to cover the conduct of the defendants which affects the claimant's interest in
the land.[45] This could be done by:

Affecting materially his land.

Affecting his use or enjoyment of it.
Interfering with servitudes and similar rights over the land. [33]

While private nuisance is always actionable, public nuisance is not. A claimant of public nuisance
has to establish special loss over and above the inconvenience suffered by the public in general,
[46]
as public nuisance is a crime and it would be unreasonable for everyone inconvenienced by it
to be allowed to claim.[47] This distinction was followed in India, [48] along with the UK principles of
nuisance.[49]

Rule in Rylands v Fletcher[edit]

Anyone who in the course of "non-natural" use of his land "accumulates" thereon for his own
purposes anything likely to do mischief if it escapes is answerable for all direct damage thereby
caused.[50] It imposes strict liability on certain areas of nuisance law.[33]
While in the UK, this rule is strictly "a remedy for damage to land or interests in land" and
"damages for personal injuries are not recoverable under the rule", [51] in India, the courts have
developed this rule into a separate area of absolute liability rule, where an enterprise is
absolutely liable, without exceptions, to compensate everyone affected by any accident resulting
from the operation of hazardous activity.[52] This differs greatly from the UK approach as it
includes all kinds of resulting liability other than damage to land. [52]

Constitutional torts[edit]
Another area of tort that developed in India which differs from the UK is the availability of
constitutional torts. Creating constitutional torts is a public law remedy for violations of rights,
generally by agents of the state, and is implicitly premised on the strict liability principle. [53] The
tort was further entrenched when the court allowed compensation to be awarded as "a remedy
available in public law; based on strict liability for the contravention of fundamental rights to which
the principle of sovereign immunity does not apply, even though it may be available as a defence
in private law in an action based on tort".[54] This approach is vastly different from the approach
taken in UK as compensation for damages is not an available public law remedy.[55]

Damages[edit]
Calculation of damages[edit]

Heads of claims under personal injury

Damages in the law of torts in India are premised on the concept of restitutio ad integrum.[56] India
adopts a compensatory method and advocates "full and fair compensation" in all cases. [57]
In determining the quantum of damages, the Indian court will look to similar cases that may
enable comparison.[58]
Indias formulation of damages for tort cases is premised on the multiplier method, awarding
compensation based on the degree of compromise to the earning ability of the victim. [59] Under
the multiplier method, the fair and just amount represents
the number of years' purchase on which the loss of dependency is capitalised. Then allowance to
scale down the multiplier would have to be made taking into account the uncertainties of the
future. The allowance for immediate lump sum payment the period over which the dependency is
to last being shorter and the capital feed also to be spent away over the period of dependency is
to last.[60]
The multiplier principle is encapsulated in a statutory form for tortious cases involving personal
injuries caused by motor vehicles, under the Motor Vehicle Act.[61] However, in so calculating, the
court will take into account inflation in calculating damages. [62]
For instances of pecuniary damages with regards to personal injury, the following heads [clarification
needed]
will be taken into account:[63]

Loss of earning.
Medical, hospital and nursing expenses.

The loss of matrimonial prospects.

In instances of non-pecuniary loss, the following will be taken into consideration: [64]

Loss of expectation of life.

Loss of amenities or capacity for enjoying life.

Loss or impairment of physiological function.

Pain and suffering.

Aggravated damages may be awarded to compensate victims for their wounded feelings in
tortious cases in certain cases.[65] These damages are determined by examining if the
defendant's conduct aggravated the plaintiff's damage by injuring "feelings of dignity, safety and
pride".[66]

Approach towards pain and suffering[edit]

In analysing pain and suffering, several factors such as severity of injury, medical treatment
required, psychological stress[67] and long-term physical and emotional scars, would be taken into
account.[68]
In cases of victims who were unconscious, one must award not only for the "loss of amenities
and loss of expectation of life, but also for pain and suffering". [69] Such damages are awarded not
as a matter of "solace".[70] This view comes close to that expressed by Lord Scarman in Lim Poh
Choo v Camden and Islington Area Health Authority,[71] difference being that an award must be
"made even for pain and suffering in case of unconscious plaintiffs". [70] The reason for so doing is
that it "looks strange that wrongdoer whose negligence makes the victim unconscious is placed
in a more advantageous position than one who inflicts a lesser injury which does not render the
victim unconscious".[72]
There are three guiding principles in measuring the quantum of compensation for pain and
suffering:[73]

Amount of compensation awarded must be reasonable and must be assessed with

moderation.
Regard must be had to awards made in comparable cases.
The sum awarded must to a considerable extent be conventional.

Punitive damages[edit]
Being influenced by Rookes v Barnard,[74] the India Court ruled that punitive damages can be
awarded in only three categories: [75]

Cases where the plaintiff is injured by the oppressive, arbitrary or unconstitutional action
by a servant of the government.
Cases in which the defendants conduct has been calculated by him to make a profit for
himself which may well exceed the compensation payable to the plaintiff.
Where provided by statute.

However, this stand has since shifted with an expanding tort jurisdiction. The Supreme
Court accepted a committee's suggestion to evolve a "principle of liability punitive in nature
on account of vandalism and rioting".[76] The reasoning given was that it "would deter people from
similar behaviour in the future". [76]
In an environmental tort case, the defendant was made to pay exemplary damages "so that it
may act as deterrent for others not to cause pollution in any manner". [77]

Tortious litigation[edit]
Despite being often cited as a litigious country,[78] the rate of litigation is low, due to problems
such as long delays, heavy expenses and meagre damage awards. [79] There has apparently been
an increase in litigation over the past years, especially with cases involving the government.
[80]
This has been said to be due to Indias socio-economic growth and the resultant sensitisation
regarding legal rights.[80]

Difficulties in the legal system [edit]

The delay in delivery of justice is a major problem plaguing India. [81] This has been attributed to
reasons such a low judge to population ratio (1 judge per 100,000 capita, with a small number of
courts available),[82] as well as poor administrative governance. [83]
Outmoded procedural laws allow for delaying tactics, such as interlocutory appeals and stay
orders.[83] The government has also been accused of employing delay tactics whenever it is a
litigant, appealing even when the chance of success is remote. [84] As a result, the system appears
to resemble a "sunk cost auction", where litigants invest ever-increasing amounts to stave off
higher losses.[79]

Reforms[edit]
Due to the problems noted above, it has been stated that reformation lay with the
parliamentarians and legislators. Structural reforms are to be brought about by amendments to
legislation, while operational reforms can only be brought about by "a change in mindset". [85]

Controversies[edit]

Article 21 is at contention here with regards to constitutional torts.

Absolute liability[edit]
One of the controversies in Indian tort law concerns the rule on absolute liability. The extremely
strict approach, where even acts of Godare not recognised as a defence is severely criticised
especially since it disregarded the "generally accepted parameter of minimum competence and
reasonable care".[86] The implementation of such a rule endangers the growth of science and
technical industries, as investors have to take the risk of liability given that there is no defence to
the rule.[86]

Judicial activism[edit]
The judiciary has been criticised for being overly activist and overstepping its jurisdiction. By
creating constitutional torts, they are accused of usurping both legislative and administrative
functions.[87] Controversy further arose when judges began to read such obligations of the state
into Article 21 of the Indian Constitution[88] to impose vicarious liability on the state.[89] However,
such judicial activism in India has been used for "achieving social and distributive justice." [90]