It is said that road accidents are one of the top killers in our country, especially when, the drivers operate indiscriminately and/or haphazardly. This proverbial recklessness often persuades the Court to draw an initial presumption in several cases based on doctrine of res ipsa loquitur.
Initially claims based on tort were filed under common law in Civil Courts. Torts arising out of motor vehicle have increased. The legislature thought it fit to provide a special forum for the same and that is how, it appears that Section 110 was added in Motor Vehicle Act, 1939.
Prior to addition of Section 110 in the Motor Vehicles Act there existed Section 110 but under the said provision powers to appoint persons to investigate and report about motor accidents and it was with the State Government, but the officers so appointed were not empowered to adjudicate on the liability of the insurer or on the amount of damages to be awarded except at the express desire of the Insurance Company concerned. Said provision did not help persons with limited means in preferring claims on account of injury or death because a Court decree has to be obtained before the obligation of the Insurance Company to meet the claims can be enforced.
It was therefore proposed to empower State Government to appoint Motor Accident Claims Tribunal to determine and award damages and that is how Section 110 to 110F came to be inserted in the Act. Prior to this addition compensation in respect of accidents involving the death of or bodily injury to persons arising out of use of motor vehicle was justiciable in Civil Courts.
That remedy was not only heavily burdened with very heavy Court fees but also tardy in its working. It could not speedily deal with the large number of claims of aggrieved persons and to simplify the procedure and to get the speedy relief to the claimants a procedure was involved in the Motor Vehicle Act so that a claim for compensation can be made by a simple application to the tribunal without payment of ad valorem Court fees.
Though a special-forum was provided, all the original defences and procedure remained more particularly of strict liability. It was necessary for the claimants to prove negligence of the other side and while so proving it again remained open for the tort-feeasors to bring any contributory negligence by way of defence.
Simple application which was intended to be decided by the legislature became again clumsy and complicated resulting into delay in awarding of compensation and frustration too. Such frustration and expectations of the people and social obligation were echoed by the Courts of different States and even the Apex Court in different decisions suggesting that for quicker soothing and fulfilling social obligation there shall be a provision for no fault liability. Even by passage of time, the law of torts also came to be changed to fit in or suit in the demand of the day.
Policies of Tort Liability
The history of the law of torts has hinged on the tension between two basic interests of individuals, the interest in security and the interest in freedom of action.
The first demands that one who has been hurt should be compensated by the injurer regardless of the latter’s motivation and purpose; the second that the injurer should at best be held responsible only when his activity was intentionally wrongful or indicated an undue lack of consideration for others.
The former is content with imposing liability for faultless causation; the latter insists on “fault” or ” culpability’.
Problem to the allocation of best claims
The task confronting the law of torts is, therefore, how best to allocate these losses, in the interest of the public good. For the solution of this problem, no simple and all-embracing formula can be offered, because the concrete fact problems are manifold and often complex.
To start with, much may depend on the kind of harm for which reparation is sought. Early law, as we might expect, was in the main content with affording protection against bodily injury and physical damage to a person’s tangible property. Somewhat later, it offered a remedy for injury to reputation from libel or slander, and now in our more highly sophisticated culture, demands are being made for legal protection against less palpable injuries, like indignity or emotional distress. Obviously different considerations when dealing with such diverse injuries.
It is one thing to require compensation for a brutal assault fracturing the victim’s skull, but quite another for mere fright or distress at the sight of a street accident. The possibility of opening the door too widely to faked claims, suspicions concerning the reliability of medical evidence and so forth may militate against a remedy for mental disturbance, while little hesitation would obviously be felt in allowing compensation for a broken arm in a road collision.
This approach suggests that a proper function of tort law should be not so much the shifting as the distribution of losses typically involved in modern living. Acceptance of this view point must inevitably change evaluations of what is a fair allocation of risks. We have seen that no social value attaches to the mere shifting of loss so long as its effect is merely to impoverish one individual for the benefit of another.
In order to warrant such a result, the law had to find a compelling reason for subordinating the defendant’s interest to the plaintiffs’ and inevitably focussed attention on the culpability of the individual participants in the accident.
On the other hand, if a certain type of loss is looked upon as the more or less inevitable by-product of a desirable but dangerous activity, it may well be just to distribute its costs among all who benefit from that activity, although it would be unfair to impose it upon each or any one of those individuals who happened to be the faultless instruments causing it.
Such a basis for administering losses has been variously described as ” collectivization of losses” or ” loss distribution”. It leads to the selection of defendants, not necessarily because they happen to be morally blameworthy, but because they represent a conduit for ” internalizing” the accidents cost to the risk creating activity and distributing it among its beneficiaries through higher prices and/or liability insurance.
Once established the fault theory struck deep roots. ” No liability without fault” became the banner of an individualistic society set on commercial exploitation and self-help. Such fragmentary area of law, in which the strict liability of earlier precedent managed to resist the pressure for reorientation, like responsibility for the escape of fire and animals, were thought of as vestigial anomalies of an uncivilized past when individual freedom was less esteemed than in the new era of middle class democracy.
Inevitably impetus of this movement began to subside as the principal reason for repressing strict liability lost its force with the growing strength of industry and its ability to distribute the cost of tort losses by insurance and higher prices. Leaving behind the 19th century philosophy of laissez-faire public opinion has become- because it could afford to be- more social minded.
Many activities now as heretofore, exact a high toll of life, limb and property. Faced with this situation, society may adopt any one of the three possible courses. It may proscribe the activity altogether as by a statute declaring it illegal or a court enjoining it as a nuisance.
Alternatively, it may choose to incur the danger of the enterprise for the sake of its social utility, but forbid it to be carried on except under specified conditions or in a prescribed manner.
Hence, the proliferation of safety statutes enforced by licensing, inspection, criminal penalties and the doctrine of negligence per se. Or it may decide to tolerate the activity on condition that it pay its way regardless of whether it is carried out carelessly or not. This is the solution of strict liability.
In one sense, strict liability is but another aspect of negligence, both being based on responsibility for the creation of an abnormal risk.
The hallmark of strict liability is therefore that it is imposed on lawful, not reprehensible activities.
The moment a motor vehicle is used and injury is caused, a liability to pay compensation arises, and the Tribunal can adjudicate upon that liability and determine `just’ compensation.
This can be on the general basis of ubi just ibi remedium in respect of which we find the comment in Broom Legal Maxims, 10th edition, p.119: –
” The principle adopted by Courts of Law accordingly is, that the novelty of the particular complaint alleged in an action on the case is no objection, provided that an injury cognisable by law be shown to have been inflicted on the plaintiff, in which case, although there be no precedent, the common law will judge according to the law of nature and the public good.”
Public good requires that everyone injured viz. by the use of a motor vehicle, must immediately get compensation for the injury. Every person has a right to safety and security of his person irrespective of fault or negligence or carelessness or efficient functioning of the motor vehicles.
Every person has a right to claim compensation as that is the only way of remedying the injury caused to him in a modern urbanized, industrialized and automobile ridden life.
Justice, equity and good conscience
During British Rule, the Courts in India were required to apply the law as enacted by British Parliament and the Indian Legislation and were also required to act according to justice, equity and good conscience.
The earliest enactments of Parliament of U.K. were of 1781 and 1797 which provide that in the absence of any enacted law applicable to the circumstances, the case was to be decided according to justice, equity and good conscience.
In case of torts, the courts tried to follow the rules of common law in so far as they were in consonance with justice, equity and good conscience. They departed from it when any of its rules were unreasonable and unsuitable to Indian conditions. The application of English law in India as rules of justice, equity and good conscience has, therefore, been a selective application.
Sir Fredrick Pollock prepared a draft Code of Torts for India known as `The Indian Civil Wrongs Bill’ at the instance of the Government of India. But it was not taken up for legislation. In this draft, the law relating to contributory negligence was not dealt with.
- ‘The Law of Torts’ by John G. Fleming, Seventh Edition
- Ramdevsing V. Chudasma vs Hansrajbhai V. Kodala, 1999 ACJ 1129, (1999) 1 GLR 631