1.
The general rule in the law of torts is that every person is entitled to sue and are also liable to be sued. But, there are some exceptions to this rule. The exceptions may be studied under following two heads:
(a) Who cannot sue? and
(b) Who cannot be sued?
(a)
(i) Convict
(ii) Alien Enemy
(iii) Married Woman
(iv) Husband & Wife
(v) Bankrupt
(vi) Infant/Minors
(vii) Corporation
(viii) Foreign State
A felon or convict is a person against whom judgment of death or penal servitude has been awarded on any charge of treason or felony. In the case D.B.Y. Patnaik v. A.P., MANU/SC/0038/1974 : AIR 1974 SC 2092: 1975 Cr LJ 556: (1975) 3 SCC 185: (1975) 2 SCR 24, it was held that convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon conviction, to live in a prison house entails by its force the deprivation of fundamental freedoms like the rights to move freely throughout the territory of India or the right to practice a profession. A man of profession would thus be stripped of his right to hold consultations while serving out his sentence. But the constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, a prisoner or even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law. It was also observed in the case Sunil Batra v. Delhi Administration, MANU/SC/0184/1978 : AIR 1978 SC 1675 (1727): (1978) 4 SCC 494: 1978 Cr LJ 1741: (1979) 1 SCR 392, that conviction of a person, thus does not draw any iron-curtain between him and his rights and he is not reduced to a non-person.
Where the wrong is not with respect to property, but to the person, as for example, assault or slander, it would be open to the convict to maintain an action.
In Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav, MANU/SC/0106/2005 : (2005) 3 SCC 284 (311): AIR 2005 SC 972: 2005 (1) BLJR 631: 2005 Cr LJ 1441: JT 2005 (2) SC 450, it was observed that a Member of Parliament is not above the law as an undertrial prisoner and is subjected to jail discipline. If, he has won an election (contesting from jails), he can be allowed to take oath as an M.P., but he has to be brought back to jail after taking oath.
But, a prisoner can't have 'residual liberty' to sue for false imprisonment for breach of prison rules, if he is segregated in breach of these rules he can challenge the segregation by writ petition and if conditions in which he is living is inhumane and he suffers with health problem then he may also have a private law remedy of suing in negligece. Hague v. Deputy Commissioner of Parkhurst Prison, (1991) 3 All ER 733 (HL).
Alien Enemy is a person of enemy nationality or a person residing in or carrying on business in enemy territory, whatever his nationality. Since, the residence in enemy territory is the real test, even a citizen of India resident there will fall within the description. An alien enemy who is residing outside India or in India without the permission of the Government cannot sue in an Indian court. He can sue only, if he is residing with the permission of the Government.
A married woman can't sue without her husband being joined as a party. But, under the Law Reform (Married Women and Tortfeasors) Act, 1935, she can sue if she were a feme sole.
Under section 7 of the Married Women's Property Act, 1874, a married woman may sue in tort just as a feme sole and in process if she recovers any damage, it becomes her sole property and any damage recovered against her are payable out of her separate property. But, this Act doesn't apply to Hindus, Sikhs, Jains and Muslims and these communities are governed by their personal laws. According to personal laws of these communities, a woman can sue in respect of her separate property without joining her husband in the suit.
Prior to Married Women's Property Act, 1882 and the Law Reform (Married Women and Tortfeasors) Act, 1935, a married woman could not sue for any tort committed by a third person unless her husband joined with her as plaintiff. It was also not possible to sue against her without making her husband as a defendant. But after these Acts, it has become possible that a married woman can sue or can be sued without making her husband as a joint party. After the Law Reform (Husband and Wife) Act, 1962, each of the parties to a marriage has the same right of action in tort against each other as if they were not married but it also depends on court to stay the proceedings if it feels that the matter relates to trivial issues.
Section 7 of the Married Women's Property Act, 1874-
"A married woman may maintain a suit in her own name for the recovery of property of any description which by force of the said Indian Succession Act, 1865, or of this Act, is her separate property, and she shall have, in her own name the same remedies, both civil and criminal, against all persons, for the protection and security of such property, as if she were unmarried, and she shall be liable to such suits, processes and orders in respect of such property as she would be liable to if she were unmarried."
There is a very pertinent question here - whether a wife can maintain an action against third party for the injuries committed by her husband? We can understand this situation if we look into the facts and decisions in following cases:
Here, the wife got injured owing to the negligence of her husband while he was driving the car as agent for his mother. But, in such cases, the wife can't sue her husband as in the eyes of English Common Law, both husband and wife are considered as one entity. But, it was observed that the wife could hold his master vicariously liable on the ground that 'others may not hide behind the skirts of (marital) immunity.
Here, the husband's freedom from liability is based on an immunity which is personal to him.
In this case, the plaintiff and her husband were working as a helper and manager to the same employer. The plaintiff (wife) sustained injuries due to the negligence of her husband. She sued the employer for damages. In defence, it was the plea that the wife cannot maintain a suit against her husband, it would also immune the master for whom he was working. The defendant's plea was rejected and the court followed the decision of Smith v. Moss. Singleton, L.J., stated-
"The fact that a wife has no right of action against her husband in respect of his tortious act and negligence does not mean in law she has no right of action against her husband's employer if he, when he did that negligent act, or made that negligent omission, was acting within the scope of his employment. They remain liable, and there is no reason either in law or in commonsense why they should be given an immunity which springs, in the case of husband and wife, from the fiction that they are one and from the desire that litigation between husband and wife shall not be encouraged."
In India, the wife cannot sue her husband for personal injuries on the basis of personal laws of different communities, but she can sue her husband's employer if husband has committed a tort against her during the course of employment. It follows that on the basis of parity, a husband may also recover against her employer if she has committed a tort against her husband during the course of her employment.
If an insolvent commits a tort, its liability is not a debt provable in insolvency and is not discharged by insolvency. But, an insolvent may be sued for a tort committed by him either before or during insolvency and in case of decree against him, the amount thus awarded is a debt provable in insolvency.
But a bankrupt or insolvent cannot sue for wrongs in respect of his property since all his property vests in a Trustee in bankruptcy according to English Law, or the Official Assignee or the Official Receiver in India.
Q.
Q.
An infant or minor may sue with the help of his next friend (usually father) if any wrong has been done to him. But, if an infant who has sustained injuries when he was in the womb of his mother can maintain an action for injuries is yet to be answered.
In the case Walker v. G.N. Rly., (1890) 28 LR Ir 69, a child was borne crippled and deformed after an accident to it enventresa mere (i.e. when he was in mother's womb) owing to the negligence of company, while the mother was travelling on its line. The railway company was not held liable due to two reasons:
First-the railway company owed no duty of care towards the child since there was no contract with the child, or the company did not know the existence of child at all. Second-the medical evidence to establish the claim was also uncertain.
In England, the British Parliament passed the 'Congenital Disability (Civil Liability) Act, 1976', by which an action for the injury to unborn child has been permitted in some cases. If someone's wrongful acts hamper growth of the unborn child in mother's womb resulting in disabled and abnormal infant then the action may lie against the wrongdoer. Even father can be held liable for his wrongful act which cripples the growth of child under this act. The mother can be held liable for disabilities to child if she is found guilty of negligent driving of a motor vehicle. Damages for the loss of expectation of life of a child can be claimed provided the child lives for at least 48 hours after his birth.
But, we, in India lack such Act but rights of unborn child are recognised in Hindu Law. The child in womb has right to share in the property. Causing death to unborn child, abortion and miscarriage are also made penal offences under sections 312, 313 and 316 of the Indian Penal Code.
Q.
A corporation is considered as a legal person. Its features lie in name, perpetuity of existence and capacity to sue and be sued.
(A) A corporation can sue for torts against itself, for malicious presentation of a winding-up petition.
(B) a libel charging it with insolvency or with dishonest or incompetent management.
In Mayor of Manchester etc. v. Williams, (1891) 1 QB 94, it was observed that a corporation cannot maintain an action for libel charging it with corruption for it is only individuals and not the corporation who can be guilty of such an offence.
A corporation is liable for torts committed by its agents or servants as an employer for the torts of his servants, when the tort is committed in the course of doing an act within the scope of the powers of the corporation. It may thus be liable for assault, false imprisonment, trespass, conversion, libel or negligence.
The definition of Corporation can be understood with the explanation of Viscount Haldone LC in the case Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd., 1915 AC 705 (713): 113 LT 195 (HL), as-
"A corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation."
No action lies against any foreign sovereign. No court can entertain an action against a foreign sovereign for anything done, or omitted to be done, by him in his public capacity as representative of the nation of which he is the head; De Habar v. The Queen of Portugal, (1851) 17 QB 171. To have a residence in a foreign territory does not lead to a waiver of immunity or submission to local courts.
(i) Sovereign or King
(ii) Act of State
(iii) Foreign Sovereign and Ambassador
(iv) Infant/Minors
(v) Lunatic
(vi) Drunkard
(vii) Corporation
(viii) Trade Union
'The King can do no wrong' is the maxim on which the immunity of the crown from civil liability is based. So, an action for personal wrong will not lie against the Crown. By, 'the Crown Proceedings Act, 1947' while changing the old law. It also preserved the rule that no proceedings can be brought in tort against the crown in a private capacity.
In our country there is no King. As per the provisions enshrined in the Constitution of India, the President and the Governors shall not be answerable to any court (i) for the exercise and performance of the powers and duties of their office, or (ii) for any act done or purporting to be done by them in the exercise and performance of those powers and duties. Under section 87B of the Civil Procedure Code, no ruler of any former Indian State may be sued in any court except with the permission of the Government of India.
If Act is done in exercise of sovereign power in relation to another State or subjects of another State which cannot be questioned by municipal courts is called as 'Act of State'. Acts done by rulers in exercise of political power to the people of another State are Acts of State and, therefore, they are exempted from liability. If a foreign national gets injured in course of exercising some sovereign power, he can get remedy through diplomatic means. Some salient features of an Act of State are:
(A) The act is done by State's representative,
(B) The act is injurious to other State or its subject,
(C) Such acts are done either with the prior sanction or is subsequently ratified by the State.
In English Law, the courts have no jurisdiction over an independent foreign sovereign, unless he submits to the jurisdiction of the court as it was observed in the case Mighell v. Sultan of Johore, (1894) 1 QB 149. The same protection is also available to a diplomatic agent or ambassador and his family.
In India, section 86 of the Civil Procedure Code says that no ruler of a foreign State may be sued in any court except with the permission of the Government of India and it should be certified in writing by a secretary to that Government. Same immunity is extended to an ambassador or diplomatic agent and his family.
Q.
In India, below the 18 years of age, a boy or girl is called as minor. A minor or infant is equally liable for his torts as an adult person. Knowledge, intention or malice is a necessary ingredient in constituting a tort and infancy is a good defence in case he has not attained sufficient maturity of understanding.
In the case Swarup Kishore v. Goverdhandas, AIR 1956 MB 84, the defendant slapped the plaintiff in presence of several persons. The defendant was a 16-year old boy and the defense plea was that defendant can't be held liable in damages as he was a minor. But this contention was rejected by Justice Dixit who observed that a minor can be held liable for his torts as an adult. The rule of exemption from liability for a minor has no applicability in conduct tortious in itself and in its very essence-"It is only in those cases where an act is innocent in itself but become tortious by the addition of some ingredient such as intention, malice, knowledge or state of mind in the person charged as a wrong doer that the age and mental capacity of the defendant becomes relevant."
Liability lies with lunatic is same as with infants. It has been said that insanity by itself is not a defence in tort. But in malice insanity presents a good defence to the existence of such malice or intent.
If the person does something which is not voluntary, but the act of automation, like the act of a fever patient in his delirium or a somnambulist in his sleep or of an epileptic in his paroxysm, and for such act, defendant is not liable.
The degree of insanity has to be decided in each case and it depends on the facts and circumstances of the case to decide about the liability.
If the nature and quality of act are known to the defendant then no defence is available for the defendant.
Ranganagulu v. Mullackal, MANU/KE/0009/1974 : AIR 1974 Ker 25 (Vol. 61, c. 9), is an important case to be mentioned here. Ranganagulu, the appellant was a regular visitor from Ramnad district who used to visit Mullackal temple at Alleppey to worship there. Once, he entered the temple with shirt and shoes and broke the idol of the deity. He was handed over to the police. The police suspected him as an insane and kept him under surveillance of a doctor. The doctor observed that he was indifferent to the surroundings, does not sleep at night, talks incoherently, laughs without any reason and declared him as an insane. After cross-examination, the doctor admitted that these conditions can't be held as sufficient to say that he was insane, if considered individually. But, if put all these pieces together, we can say that he is insane. The Court stated that this evidence is not sufficient to hold that the appellant was not in a position to know the nature and quality of his act, nor his acts were involuntary. The Court held that the appellant was liable and stated that 'much importance should not be attached to the medical certificate, at any rate, it is not possible to hold that the appellant was incapable of understanding the nature and quality of this act; obviously, the appellant's act in breaking the idol was not an involuntary act either - the act of an automation. Even, if he was under the impression that he had the right to enter the sanatorium of the temple or he was not aware of the consequences of his act, still, if he knew the nature of his act and if the act was not an involuntary act, he is liable for the act if the act is tortious.
In the law of tort, drunkenness is not considered as a good defence. It is every man's sense to know the consequences of what he does. If a man drinks and does the things and thinks that he would not be liable for his act in this state then he is wrong. But, if A administers intoxicants in B's drinks against his will, or by fraud, or by mistake then B may not be held liable in tort provided he is unable to differentiate between right and wrong.
A corporation is considered as a person in the eyes of law and is vicariously liable for the acts of its servants or agents in the course of their employment. It can be held liable for torts like false imprisonment, conversions, libel, trespass or negligence.
We can mention here the case of T. Pillai v. Municipal Council, MANU/TN/0204/1961 : AIR 1961 Mad 230, in which plaintiff had a pet dog and it was killed by the municipal employee in course of killing stray dogs in the municipal area. The court had observed that the defendant was liable and remarked - 'the corporation is a fictitious and legal persons having an entity in law distinct from its members and by its very nature can only act through its servants or agents, and not in propria persona and the corporation is as much liable in an action in tort as an individual. Whatever difference of opinion there may be on the question of legal doctrine as to how far an agent or servant of a corporation can be said to act within the scope of his employment in respect of a tort which is ultra vires the corporation, there is consensus of authority for holding that a corporation cannot be immune from liability in respect of tort brought about at its instance on the ground that the act was not intra vires the corporation.
A trade union can be a body corporate if it is registered under section 13 of the Indian Trade Unions Act, 1926 and can sue and be sued. If, a trade union is not registered then under Order 1, rule 8 of the Code of Civil Procedure, 1908 any one or more of its members may be sued as representing the trade union. Members of a registered trade union are exempted from liability in respect of certain torts.
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