The word tort derives its origin from the Latin word “tortum”; which means twisted or crooked. The law of torts is still a newly emerging concept in India.
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.”
- A tort is different from a breach of trust and contract. When the act of an individual inflicts some harm to the other party due to carelessness, negligence, on that note, it results in Tort.
- Parties to the tort are the plaintiff (who sues) and the defendant (the wrongdoer).
- The person who causes such harm to the other party is liable to pay compensation to the injured party; this compensation received by the party known to be damaged. For claiming any kind of damages, there must be some breach of duty.
- The intention is not the major element in terms of a tort. If an act caused due to carelessness or negligence, and then also the other party can be sued. Tort helps people to hold the other person accountable for the injuries suffered by them.
Essentials of Law of Torts
- Act/omission: To construct a tort there must be an act, no matter negative or positive. Also, the breach of duty to construct such wrongful act or omission. In other words, we can say that an individual holds a duty to do or not to do certain actions, or to act in a particular manner which a reasonable man is expected to act under certain situations. If a life Saviour person is appointed for a specific swimming pool and an individual is drowning and the appointed person did not save him so he can be held liable for his negligence and his omission of the act. A person cannot be held liable for social or moral wrong. For example, if somebody fails to help a drowning man then he cannot be held liable because it is a moral wrong and no legal duty upon him.
- Legal Damage: For constructing a tort, breach of a legal duty is mandatory. The legal right vested to the plaintiff should have been breached i.e certain acts or omissions have resulted in the breach of legal duty. For the injury sustained by the plaintiff, he can claim damages.
Legal damage comes up with some of these maxims:
Injuria sine damnum
: “Injuria” denotes unauthorized interference with the right of the plaintiff. “Damnum” denotes harm or loss suffered in terms of comfort, money, health, etc. Any violation without any harm does not constitute an injury under tort and one cannot approach the court.
In Ashby v. White, the plaintiff was detained by the defendant, a returning officer. The plaintiff was a qualified voter at the parliamentary election but due to detention, his voting right was violated. The plaintiff sued the defendant for a violation of his legal right. Since there is a right there is also a remedy available for it.
Similarly, in Bhim Singh v. the State of J&K, the plaintiff was an MLA of J&K who was detained wrongfully by the police officer while he was going to attend the Assembly session. The fundamental right of personal liberty was violated and moreover, he was not presented before the magistrate within the requisite period. Here the wrongful and malicious act of the defendant was actionable so the court awarded exemplary damages of Rs 50,000 to Bhim Singh.
Damnum sine injuria
: According to this maxim, there is some injury caused to the plaintiff without any unauthorized interference to the plaintiff’s legal right. A person cannot claim damages in law even if the injury happens because of the deliberate act of the defendant, as long as the other party is exercising his legal right. For example, a defendant set up a school exactly in front of the school of the plaintiff. The plaintiff suffered loss because of the rival school as he has to lower the fees and many students took admission to the defendant’s school. There is no remedy available for the loss suffered by him. The defendant has not done anything in excess of his legal right.
Development of the law of torts in India
To deal with the malicious behavior of the people, a tort is there in Hindu and Muslim law but we can assume that tort was formally introduced by the Crown in India. It is based on the principles of equity, justice, and good conscience. The law of torts is based on the principles of ‘common law’ which is mainly the English law of torts. The application of the law of tort is selectively in Indian courts keeping in mind if it suits the circumstances of Indian society.
Justice Bhagwati in M.C Mehta v. Union of India observed that:
“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. Judicial thinking cannot be allowed to be constructed by reference to other nation’s law as it prevails in England or in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.”
The main purpose of the Law of Torts in India
- The major aspect of the Law of Torts is to provide compensation to the person, who suffered from loss/harm. Though in modern times, the aim is to distribute the losses.
- In both crime and torts, the common element is of violation of general duty. The state monitors serious crimes like murder, robbery, burglary, etc. In Law of Torts as well, the state has control over all the common wrongs. Sometimes, we can believe that harm to an individual is equivalent to society.
Thus, the main purpose of the Law of Torts is to punish the wrongdoer and promote peace in the society. Also, to provide compensation.
Reasons for the slow development of Law of Torts in India
In comparison to other nations, the Law of Torts is not much developed in India. Even the Tort Law of India is not codified. There are many reasons for the moderate development of Tort Law in India, some are as follows-
1) The law is uncertain. The law is not codified and still, in its developing stages, it seems very uncertain for the people. This is the reason why we found very few numbers of cases under Tort Law in India. Also, the lack of precedents increases the ambivalence of Tort law. The major precedents available in India belong to English Tort Law.
2) People lack political consciousness. There are numbers of people who are not even aware of their rights which results in less use of Tort law in the country. The reason denoted to the respective problem occurs due to the vast illiteracy in India.
3) Now, why do people ignore their rights? The answer to the question is illiteracy, people ignore their rights. Due to illiteracy, people hesitate to claim their rights due to lack of knowledge and unable to claim remedy.
4) Poverty results in the non-payment of the high cost of litigation and keeps citizens far away to claim their rights. This remains a prime reason for refraining from filing a Tort case. The rate of court fees and lawyer’s fee seems high to the people who are below the poverty line. Due to this, the poor man decides to suffer the pain instead of approaching the court.
The reasons for the slowdown of the development of the tort law in India shows the emergence need regarding the law of tort to be there in the field to provide the remedy towards any harm/injury. It definitely requires development. So that citizens of India will have faith in the Judiciary system of India and will be able to get justice towards any legal wrong.
All kinds of solutions are there the only need is to look upon them and to make people aware of them. As of now, poor people don’t even complain about the wrongs that happen to them.
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