CONCLUSIONES Y RECOMENDACIONES
1.7 Banco de Preguntas Institucionales
At common law the king could not be sued in earlier, either for the wrong actually authorized by it or committed by its servants in their course of employment. With the increase in the functions of the state the Crown became one of the largest employers of the labour in the country. Under these circumstances, the rule of immunity for the Crown became highly incompatible with the demands of justice. Thus the position was changed by the Crown Proceedings Act, 1947. Now the Crown is also vicariously liable.
In India Article 294 of the Indian Constitution speaks about the liability of the State and Central Government. The art. 294 provides the liability may arise out of any contract or otherwise. The word otherwise suggests that the said liability may arise in respect of tortious acts also. Article 300 provides
32 (1837) 3 M & W 1 33 (1850) 5 Exch 843
that the liability of the Union of India or any State will be the same as that of the Dominion of India and the provinces before the commencement of the Constitution.
If we examine the liability of the Dominion and the provinces before the commencement of the Constitution, we could see that there the state functions were divided into two categories namely Sovereign and Non-sovereign functions. If the plaintiff suffers injury from the sovereign function of the government he has no remedy in tort against the government. Whereas if the function is non- sovereign he has a remedy in tort.
It was so held in P&O Steam Navigation Co. v. Secretary of State34, in this case a servant of the plaintiff company was talking a horse driven carriage belonging to the company. While the carriage was passing near the government dock yard, certain workmen employed by the government negligently dropped an iron piece on the road. One of the horses was injured thereby. Rejecting the defence of state immunity the court held that action against state was maintainable and awarded damages.
The principle in this case has been followed in numerous cases and continues to be the law of land even a century later. The first decision of the Supreme Court regarding the liability of state is that of the case State of Rajasthan v. Vidyawati35. In this case the Rajasthan government was maintained a jeep for the use of the collector of Udaipur. While it was being driven back from a private workshop by a government driver a pedestrian was knocked down and fatally injured. The court awarded damages to the victim. In this case the court rejected the claim of sovereign immunity.
Three years later in Kasturi lal v. State of UP36, the Supreme Court modified its approach, it was held that if a tortious act is committed by a public servant and it gives rise to a claim for damages the question to ask is, was the tortious act committed by the public servant in discharge of statutory functions which are referable to and ultimately based on the delegation of the sovereign powers of the state to such public
34 (1861) 5 Bom. HC 35 AIR 1962 SC 933 36 AIR 1965 SC 1039
servant? If the answer is in affirmative the action for damages for loss caused by such tortious act will not lie. On the other hand if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power an action for damages would lie. The course of employment is, in this category of cases an act of the servant who might have been employed by private individuals for the same purpose. Thus the Supreme Court in Kasturilal’s case accepted the distinction between sovereign and non sovereign functions. The facts of this case is that one Ralia Ram, a bullion merchant and a partner in the firm Kasturilal & Ralia Ram was arrested by a police constable and certain gold and silver were taken from him. The police officers were required under law to keep bullion seized in a separate box in the treasury under lock and key. Instead it was kept in the police malkhana under the charge of a Head Constable, who misappropriated the gold ornaments and fled to Pakistan. Ralia Ram claimed compensation for the loss caused to him by the negligence of police authorities of the state. The Supreme Court held that the state was not liable as police authorities were exercising sovereign functions.
In State of MP v. Chirojila37l, the police made lathi charge on a student’s procession and a loud speaker, belonging to the plaintiff and being used in procession got damaged. When the owner brought an action for damages it was held by the court that maintaining the law and order including quelling of riot is a sovereign function. The state was held not liable.
Transporting of crushed barely for the defence department was considered a non-sovereign function and the government was held liable for the tortious act of its servant. So held in Pushpa v. State of JK38
Refer:
Union of India v. Sugrabhai AIR 1969 Bom.13 Satyawati v. Union of India AIR 1967 Del.98 Rooplal v. Union of India AIR 1972 JK 22
Union of India v. Abdul Rahiman AIR 1981 JK 69
37 AIR 1981 MP 95
Ram Gulam v. Govt. of UP AIR 19 All 206 State of MP v. Devilal AIR 1970 MP 170 State of UP v. Tulsi Ram AIR 1971 All 162 Union of India v. Savita Sharma AIR 1979 JK 6.
In spite of the suggestions made by the Supreme Court in Kasturilal case, the Parliament has not changed the existing bad law with the result that the concerned citizens have been suffering. In such a situation and being dissatisfied with the above anachronistic law, a new line of action under writ jurisdiction has been invoked to render justice and compensate those whose fundamental right to life and personal liberty under article 21 are violated by the wrongful acts of government officials while performing even sovereign functions. The cases of Rudhal Shah v. State of Bihar39, Sebastien M.Hongary v. Union of India40, Bhim Singh v. State of JK41, SAHELI v. Commissioner of Police, Delhi42, etc. illustrate that the defence of sovereign immunity is not available when there is a violation of fundamental rights under article 21.
Thus the present position is that sovereign immunity is subject to the fundamental rights in article 21. When there is a violation of right under art.21 arises there is no such defence as sovereign function available. So the tortious liability of the state is limited only to non sovereign functions regarding the sovereign functions state is liable only if there is a violation of article 21 of Indian Constitution.
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39 AIR 1983 SC 1086 40 AIR 1984 SC 1026 41 AIR 1986 SC 494 42 AIR 1990 SC 513
Suggested References:
1. W V H Rogers, Winfield & Jolowicz Tort, 17th Edn-2006, Sweet & Maxwell, London. [ Chapter 21]
2. RFV. Heuston & RA Buckly, Salmond and Heuston on Law of Torts, 20th Edn- 1992, Universal Law Publishers, Delhi. [ Chapter’s 20,21]
3. Paula Giliker & Silas Beckwith, Tort, 2ndEdn- 2004, Sweet & Maxwell, London. [Chapter 2]
4. DG Cracknell, Obligations: The Law of Torts, 4th Edn- 2003, Old Baily Press, London. [ Chapter’s 3,4]
5. SP Singh & Indrajith Singh, Law of Torts, 4th Edn – 2006, Universal Law Publishers, Delhi. [ Chapter’s 8,17]
6. B M Gandhi, Law of Torts, EBC, Lucknow, 2002. [ Chapter’s 4,6]
7. R K Bangia, Law of Torts, 8th Edn- 2005, Allahabad Law Agency, Haryana. [Chapter’s 3,4]
8. Ratanlal & Dhirajlal, The Law of Torts, 24th Edn-2004, Wadhwa, Nagpur. [Chapter 3]
MODULE III DEFENCES
When the plaintiff brings an action against the defendant for a particular tort providing the existence of all essentials of that tort, the defendant would be liable for the same. The defendant may however even in such a case avoid his liability by taking the plea of some defence. They are:
1.
Volenti non fit injuria :
No injury is done to one who consents. This maxim had its origin in the process by which Roman law validated the act of a free citizen selling himself into slavery. In the case plaintiff voluntarily agrees to suffer some harm he is not allowed to complain for that and his consent serves as a good defence against him. No men can enforce a right which he has voluntarily waived or abandoned. When you invite somebody to your house you cannot sue him for trespass, nor can you sue the surgeon after submitting to a surgerical operation because you have expressly consented to that acts. Similarly no action for defamation can be brought by a person who agrees to the publication of a matter defamatory of himself. For the defence of consent to be available, the act causing the harm must not go beyond the limit of what has been consented. For e.g. a player in a game of hockey has no right of action if he is hit while the game is being lawfully played. But if there is a deliberate injury caused by another player, the defence of volenti non fit injuria cannot be pleaded.
Consent to suffer harm may be express or implied. In Hall v. Brookland Auto Racing Club43, the plaintiff was a spectator at a motor car race being held at Brookland on a track owned by the defendant. During the race there was a collision between two cars one of which was thrown among the spectators thereby injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury the danger being inherent in the sport which any spectator could foresee the defendant was not liable.
In another case while the driver was taking the jeep for filling petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and sustained injury and one of them died as a result of it. It was held that neither the driver nor the owner of the vehicle could be made liable because the strangers had voluntarily got into the jeep and as such the principle of volenti non fit injuria was applicable to this case. So held in Padmavati v. Duggainaka44
The consent must be free: for the defence to be available, it is necessary to show that the plaintiffs consent to the act done by the defendant was free. If the consent of the plaintiff was obtained by fraud or under the compulsion or under some mistaken impression such consent does not serve as a good defence. The mere knowledge of risk does not imply assent. For the application of this defence the following two points must be proved: 1. the plaintiff known that the risk is there 2. He knowing the same agreed to suffer the harm. If only first of these points present i.e. There is only the knowledge of the risk, it is no defence before the maxim volenti non fit injuria. This means mere knowledge of risk is not sufficient to apply this maxim.
Exceptions: The maxim cannot apply a) where there is no express or implied consent b) where there is a consent for an illegal act e.g. Boxing with bare fists c) where the consent is not free and full d) where the consent given is to make a breach of a statutory duty e) where there is a scientier only no volens f) where the defendant is himself negligent or undertakes unnecessary risks
g) Rescue cases: when the plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger created by the wrongful act of the defendant he cannot be met with the defence of volenti no fit injuria. For e.g. in Haynes v. Harwood, defendants servant left a two horse van unattended in attended in a street. A boy throws a stone on the horses and they bolted causing grave danger to a women and children on the road. A police constable who was on duty inside a nearby police station on seeing the same managed to stop the horses but in doing so he himself suffered some personal injuries. It being a rescue case court rejected the defence of consent.