5.Standing Capacity

Law of Torts and Consumer Protection Act

Standing/Capacity

C.J. Rawandale Associate Professor  Symbiosis Law School [email protected]

Who cannot sue? 

 All persons have capacity to sue and be sued in tort.

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This, however, is a general rule and is subject to modification in respect of  certain categories of persons. It necessitates to study the following:

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Who cannot sue; and Who cannot be sued.

C.J. Rawandale Associate Professor  Symbiosis Law School [email protected]

Who cannot sue?  Following persons may not sue due to restriction on personality, partially or  fully.  Foreign State   Alien Enemy  Convict  Insolvent  Husband and Wife  Corporation

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Foreign State

  A foreign state cannot sue in any Court of India unless such State has been recognised by the Government of India.   As per Section 87A (1) (a), CPC ³Foreign State´ means any State outside India which has been recognised by the Central Government.

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  As per Section 84, CPC a foreign state may sue in any competent court: provided that the object of the suit is to t o enforce a private right vested in the t he ruler  or such state or in any officer of such State in his public capacity.  [As per Section 87A 87A (1) (b) CPC ³Ruler´, ³Ruler´, in relation to a foreign State, means the person who is for the time being recognised by the Central Government to be the head of that state.]

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Private Rights:

 The private rights rights spoken of in this section does does not mean individual rights as opposed to those of the body politic but those private rights of the State which must be enforced in a Court of Justice as distinguished from its political or  territorial rights which must, from their very nature, nature, be made the subject or  arrangement between on e State and another.

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Mirza Ali Akbar v. United Arab Republic, AIR 1966 SC 230,

 It was held by the Supreme Court that µprivate rights¶ means rights which may be enforced by a foreign state against private individuals as distinguished from rights which one State in its political capacity may have as against another  State in it s political capacity.

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 Alien Enemy   Alien enemy is a person of enemy nationality or a person residing in or carrying on business in enemy territory, whatever his nationality. An alien enemy cannot sue in his own right.  Johnstone v. Pedler, (1921) 2 AC 262  It was held that an alien enemy residing within the realm by the express or tacit licence of the Crown is temporarily free from his enemy character and can invoke jurisdiction of courts.

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  As per Section 83, Civil Procedure Code, 1908, alien enemies residing in India with the permission of the Central Government and alien friends, may sue in any court otherwise competent to try the suit, as if they were citizens of India, but alien enemies residing in India without such permission, or residing in a foreign country, shall not sue in any such court. c ourt.  Further, every person residing in a foreign country, the Government of which is at war with India and carrying on business in that country without a license on that behalf granted by the Central Government is deemed to be an alien enemy residing in a foreign country. (Explanation to Section 83, CPC.)

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Convict   A convict can under English Law sue for f or wrongs to his person and property like any other citizen.  1870-1948  Under the Forfeiture Act, 1870, a convict whose sentence was in force and unexpired, and who was not ³lawfully at large under any license´ could not sue for an injury to his property, or for f or recovery of a debt.  This disability was removed by the Criminal Justice Act 1948.

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 Under English Law, a convicted person, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication.  The Indian Law is the same.  Sunil Batra v. Delhi Administration, AIR 1978 SC 1675  It was held that ³conviction of a person does not draw any iron curtain between him and his rights and he is not reduced to a non-person´.  Smt. Kewal Pati v. State of UP, (1995) 3 SCC 600   A convict was attacked by another convict in Jail and killed due to failure of Jail authorities to protect him. In a petition under Article 32 of the constitution by the dependents of the deceased they were awarded Rs. 1,00,000 as compensation C.J. Rawandale Associate Professor  against the State for violation fo the fundamental right of life protected under  Symbiosis Law School  Article 21. [email protected]

Insolvent  Insolvent person may be defined as ³one who is unable to satisfy creditors or  discharge liabilities, either because liabilities exceed assets or because of  inability to pay debts as they mature´.   An insolvent person may be sued for a tort committed by him either before or  during insolvency, and if a decree is obtained against him, the amount awarded is a debt provable in insolvency.

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 In case of torts committed against an insolvent person, a distinction is to be drawn between torts to the person and torts to property.  In case of torts committed to property, the right of action in respect of insolvent¶s property passes to the Official Assignee or Receiver for the benefit of his creditors.  In case of torts exclusively to the person, reputation or feelings of the insolvent remains with the insolvent.

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 But where a tort tort causes injury both to the person person and property of the insolvent, the right of action will be split and will pass, so far as it relates to the property, to the Official Assignee or Receiver, and will remain in the insolvent so far as it relates to his person.  One must understand that in such a case either the t he cause of action is divided between him and the trustee or they may join together in one action in which case damages will be assessed under two separate heads.

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Husband and Wife  England  Prior to 1882, a married woman could not sue for any tort committed by a third person unless her husband joined with her as plaintiff.  She could also not be sued for a tort committed by her unless her husband was made a defendant.  Further, she could not sue her husband and the husband could not sue her for  any tort committed by one against the other.

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 These anomalies have been removed by the Married Women¶s¶ Property Act, 1882 and the Law Reform (Married (Married Women and Tortfeasors) Tortfeasors) Act, 1935.   A married woman can sue for any tort committed by a third person and can also be sued for any tort committed by her without joining her husband who cannot be made liable or made party to a suit simply because he is the husband.  Finally, by the Law Reform (Husband and Wife) Act, 1962, each of the parties to a marriage has the same right of action in tort t ort against the other as if they were not married but the court has a discretion to stay the proceedings to prevent them from using it as a forum for f or trivial domestic disputes without any chance of  substantial benefit to either of them.

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 India  Marital status of Hindus, Buddhists, Sikhs, Jains and Muslims in India is governed by their personal laws and not by the common c ommon law.  Marriage under these person laws does not affect the capacity of the parties for  suing or for being sued sued nor does does it confer any protectio protectionn to any of the spouses spouses for any tortious act committed by one against the other.

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Corporation   A corporation is not a real person but only a juristic or fictitious person and cannot, unlike real persons, be brought into hatred, ridicule, or contempt by any manner of falsehood.  Thus when a libel had been made against a corporation, in the aggregate capacity, it is in fact, the individuals composing it and not the corporation in the aggregate capacity whose reputation has been actually injured.  Therefore the law is that a corporation cannot sue for defamation affecting personal reputation only.  Obviously it is individual member who can have a cause of action and allege loss or personal reputation. C.J. Rawandale Associate Professor  Symbiosis Law School [email protected]

 Mayor of Manchester v. Williams, (1891) 1 QB 94  The plaintiff corporation suit for damages failed in respect of a statement containing charges of corrupt practices in the administration of municipal affairs, for such statement was held not to injuriously affect the reputation of the corporation as such.

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However, a corporation can sue for defamation, when it affects it business and properly even though the charge may be levelled against the individual members composing it.

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Two conditions must be fulfilled:

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The statement must be of such nature that it would be defamatory, if  directed against the individual;

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It must be of such a nature that it tends to cause actual damage to the corporation in terms of its property or business.

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 South Hilton Coal Co., v. North Eastern News Association, (1894) 1 QB 133  The plaintiff Company¶s suit for damages was decreed in respect of statement st atement where in it was charged with failure to provide decent and sanitary accommodation for it¶s workmen and their families because such a statement was calculated to injure in the way of its business.

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Who cannot be sued?  There are nine classes of persons who cannot be sued in tort. They are:         

Foreign Sovereigns;  Ambassadors; Infants; Lunatics; Corporations; Persons having Parental or Quasi-parental authority Persons having Judicial and Executive Authority Trade Unions; Married Women.

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1. Foreign Sovereigns  English Law  Unless a foreign sovereign submits to the jurisdiction of the Court, English courts have no jurisdiction over an independent 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.  For this purpose, all sovereigns are equal. It is based on the principle of  international comity which holds that ³every sovereign should respect other  sovereign´. C.J. Rawandale Associate Professor  Symbiosis Law School [email protected]

 Mighell v. Sultan of Johore, (1894) 1 QB 149  Daff Development Co. v Keltantan Government, (1924) AC 797

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Indian Law  The heads of all countries are exempt from the jurisdiction of the Indian Courts.  The real principle on which the exemption of every sovereign from the  jurisdiction of every Court has been deduced is that the exercise of such  jurisdiction would be incompatible with his real dignity i.e. with his absolute independence of every superior authority.  Section 86 of the Code of Civil Procedure Procedure lays down that:  ³No ruler of a sovereign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government.´

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United States of America

 United States law prohibits most civil lawsuits by an individual against a foreign state under the Foreign Sovereign Immunities Act (FSIA).  However, the Act includes a number of exceptions that, when satisfied, s atisfied, allow for  such lawsuits to be filed in U.S. Courts. One of these exceptions applies to the t he victims of state-sponsored terrorism.

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2. Ambassadors/Diplomatic Agents  The protection of unhampered and free exercise of the diplomatic function was recognised as one of the fundamental purposes of the law of diplomatic immunity in the Havana Convention, 1928, the Draft of the Harvard Research Committee, 1932 and the Vienna Convention on Diplomatic Relations, 1961.  In The Parlement Belge (1880) 5 PD 197, 207, 207, Brett LJ, asserted that ³the ³the immunity of an ambassador from the jurisdiction of the Courts of the country c ountry to which he is accredited is based upon his being the representative of the independent Sovereign Sovereign or State, which sends him upon the faith of his being admitted to be clothed with the same independence of and superiority to all adverse jurisdiction as the Sovereign authority whom he represents would be´.

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  Ambassadors cannot be sued for torts either in the Courts of England or in the Courts of India on principles of international policy. The immunity also extends to the family of such minister or ambassador.  In India, the provision of Section 86 of the the Code of Civil Procedure applies in case of Ambassador also.  The remedy against an ambassador is to move one¶s own Government to induce the Government of that country to take an action against the t he ambassador and his staff, which they may think to t o fit to satisfy the Government which complains.

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India  To give effect to the Vienna Convention of Diplomatic Relations, 1961, India formulated the Diplomatic Immunities Privileges Act, 1964, which essentially deals with the diplomatic privileges and immunities as set out in the convention. c onvention.   Accordingly, diplomatic agents enjoy absolute immunity from the criminal  jurisdiction of the receiving state, and immunity from its civil and administrative  jurisdiction.  This immunity of diplomats extends not merely to their own persons, but to t o their  suite and members of their family forming part of their household, provided that they are not nationals of the host country.

 C.J. Rawandale Associate Professor  Symbiosis Law School [email protected]

3. Minor (Infant)   As per sections 10 and and 11 of the Indian Contract Contract Act, 1872 a minor is incompetent to contract.  In Mohori Bibee v. Dhurmodas Ghose, (1903) 30 Cal. 539, it was held that a minor¶s agreement being void ab initio; no action can be brought under the law of contract against him.  Sections 82 & 83 Indian Penal Code

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 The law of torts does not make any distinction on the basis of age. Thus a child of seven years could be sued for trespass like a person of full age.  However if the tort is such as requires a special mental element such as deceit, malicious prosecution, a child cannot be held liable for the same unless sufficient maturity for committing that tort can be proved in this case.

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 Walmsley v. Humenick, (1954) 3 D.L.R. 232  The Supreme Court of British Columbia held that the defendant, a child of five years, could not be held liable for negligence because he had not reached that stage of mental development where it could be said that the should be found legally responsible for his negligent acts.

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 Sometimes, the same act on the part of a minor may result in such wrongs wrongs ± a tort and the breach of contract. The question will arise in such a case are:  I. Can a minor be sued under the law of torts although permitting such an action may mean indirect enforcement of a void agreement? Or,  II. Will he be exempt from liability in tort, also because his act is also breach of  contract for which he can¶t be sued?

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 Johnson v. Pye, (1665) 1 Sid 258   A minor obtained a loan of pounds 300 falsely representing his age. It was held that he could not be asked to repay the loan in action for deceit.  Ballet v. Mingay, (1943) K.B. 281   A minor hired a microphone and an amplifier and improperly passed it to a friend. The infant was held liable for detinue.[1] detinue.[1]

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[1] When the defendant is wrongfully detaining the goods belonging to the plaintiff and refuses to deliver the same on lawful demands, the plaintiff can recover the same by bringing an action for detinue.

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Liability of parents for children·s torts

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 As a general rule, a parent or a guardian cannot be held liable for the torts of a child. There are two exceptions to this rule:

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When the child is father¶s servant or agent, the father f ather is vicariously liable. [Not as father but in the capacity of an employer or principal]

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When the father himself, by his own negligence, affords his child an opportunity to commit a tort, he is liable.

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 Bebee v. Sales, (1916) 32 T.L.R. 413  The father supplied an airgun to his son, aged 15 years. Even after some complaints of mischief caused by the use of the t he gun, he allowed the gun to remain with the boy, who, thereafter, accidentally wounded the plaintiff. The father was held liable.

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4. Lunatics   As per section 84 of the IIndian ndian Penal code, Insanity is a good defence in the Criminal law when at the time of commission of the crime, the accused by reason of unsoundness of mind was incapable of knowing the nature of his act or that what he was doing was either wrong or contrary to law .  Lunacy, like infancy is not a good defence in an action for a tort except in case where intention, knowledge, malice, or any other mental condition is essential to create a tortuous liability, and the lunatic may be found incapable of having such mental condition or intention or knowledge sufficient to impose liability upon him.  E.g. Malicious Prosecution, Deceit

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 Ranagangulu v. Seaswan, AIR 1947 Ker. 25  The Kerala High Court held that lunacy cannot be regarded as a ground of  exemption from civil wrong as it is ordinarily considered in law of crimes because the object of the law of tort is compensation and not punishment.

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Prof. Winfield has quoted three reasons reasons for fixing the liability on the lunatics:

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where one or two innocent persons must bear loss, the t he loss must fall on him who did the act;

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public policy which requires the rule in order to include i nclude his relative to keep the lunatic under restraint and also in order to prevent tort-feasors from feigning insanity;

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the lunatic must bear the loss occasioned by his torts, as he bears his other misfortunes.

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5. Corporations  Whether Corporation liable for fraud or malice   At one time it was thought that a corporation could not be held liable for wrongs involving malice or fraud on the ground that to support an action for f or such a wrong it must be shown that the wrong doer was actuated by a motive in his mind and that ³ corporation has no mind´.  It is now settled that a corporation is liable for wrongs even of malice and fraud.  A corporation may be sued for malicious prosecution or for deceit.

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 Whether the corporation is liable for the torts of it¶s servants?   A corporation is liable for torts committed by its agents or servants to the same s ame extent as a principal is liable for torts of his agent or an employer for the torts of  his servant, provided the tort is committed in the course of doing an act which is within the scope of the powers of the corporation. c orporation.  It may thus be liable for ³assault, false f alse imprisonment, trespass, conversions, libel or negligence´. negligence´.

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 Can a corporation be sued for µUltra-vires¶ torts?   A corporation will not be liable if the act of its servant is not authorised by the article of  its incorporation, in other words, which is ultra vires of the corporation.  Poulton v. London and S.W.E. Rly. Co., (1867) LR 2 QB 534   A station master in the employment of the defendant company arrested the plaintiff for  refusing to pay the freight for a horse that had been carried on the defendant¶s railway. The railways company had authority under the Act of Parliament to arrest a person who did not pay its fare but not to arrest a person for non-payment for the carriage of goods.  It was held that the railway company was not liable as the company having no power in itself to arrest for such non-payment it could not give the station master any power to do the act. C.J. Rawandale Associate Professor  Symbiosis Law School [email protected]

 Tiruveriamuthu Pillai v. Municipal Council, AIR 1961 Mad. 230  The plaintiff¶s dog was killed by the employee of a Municipal council in the course of the discharge of their function of killing stray dogs in the municipal town. In an action by the plaintiff for damages against the Council for the loss of  the dog, it was held that the Council is liable for damages. A corporation cannot be immune form liability in respect of torts brought about at its instance.

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 In Municipal Board of Ahmedabad v. Panubhai,(1934) 37 Bom. LR 468, held by Rangnekar, J:  ³A corporation cannot be deemed to be actuated by that kind of malice which essential to the maintenance of an action for malicious prosecution, instituted by the officer, in the scope of their duty, provided the necessary ingredients of  such a prosecution are made out. A corporation may, in the t he assertion of its rights render itself liable for malicious prosecution.´

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6. Persons having Parental or Quasi Parental  Authority  Parents and persons in loco parentis have a right to administer punishment on a child to prevent him from doing mischief to him or others.  However one must remember that such an authority warrants the use of  reasonable and moderate punishment only and therefore, if there is an excessive use of force, the defendant may be liable for assault, battery or false imprisonment, as the case may be.

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 In England, as per Section 1(7), Children and Young Persons Act, 1933, a parent, teacher, or other person having lawful control or charge of a child or  young person is allowed to administer punishment on him.

 The authority of a teacher to correct his students is not limited only to the wrongs which the student may commit upon the school premises but may also extend to the wrongs done by him outside the school s chool because there is not much opportunity for boy to exhibit his moral conduct while in school under the eye of  the master the opportunity is while he is at play or outside the school.

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 R. v. Newport (Salop) Justices, (1929) 2 K.B. 416  It has been held that if the school rules prohibited smoking, both in the school and in the public, the school master was justified in caning a student whom he had found smoking cigarette in a public street.

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7. Persons having Judicial and Executive  Authority  Judicial Officers¶ Protection Act, 1850 grants protection to a judicial officer for  any act done or ordered to be done by him in the discharge of his judicial duty. He is protected even though he exceeds his jurisdiction provided that at that time he honestly believed that he had jurisdiction to do or order the act complained of.  The Object of the above stated protection is to enable the judicial officers to administer the law without any fear of unwarranted litigation against them.

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 Section 1 of the Act reads as follows:  ³No Judge, Magistrate, Justice of the Peace, Collector or other person acting  judicially shall be liable to be sued in any civil court for any act done or ordered to be done y him in the t he discharge of his judicial duty whether or not within the t he limits of his jurisdiction:  Provided that he at the time in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any court or other person, bound to execute the lawful warrants or orders of acting judicially shall be liable to be sued in any civil court, c ourt, for the execution of any warrant or order which he would be bound to execute, if within the jurisdiction of the person issuing the same.´

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Limits of such protection  1. No such protection is granted if a magistrate is acting mala fide and outside his jurisdiction.  Sailajanand Pandey Pandey v Suresh Chandra Gupta, AIR 1969 Pat. 194  The magistrate acting mala fide, illegally and outside his jurisdiction, ordered the arrest of the plaintiff. The Patna High Court held that he was not entitled to the protection given by the Judicial Officer¶s Protection Act, 1850 and was, therefore, liable for the wrong of false imprisonment.

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 2. The protection of judicial privilege applies only to judicial proceedings as contrasted with administrative or ministerial proceedings and where, a judge acts both judicially and ministerially or administratively, the protection is not afforded to the act done in the later capacity.  State of U.P. v. Tulsi Ram, AIR 1971 All. 162  Five persons were prosecuted for certain offences. One of them was acquitted by the Sessions Court and another by the High Court. The High Court upheld the conviction of only three of the five persons and authorised the issue of  warrants against these three convicted persons. The judicial magistrate acting negligently signed an order for the arrest of all the five persons. As a result of  this order, the plaintiffs, even though they had been acquitted by the High Court, were arrested by the police.

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 They filed a suit claiming compensation of Rs. 2,000 from the judicial officer and the State of U.P. stating that their arrest before their relations and friends on the day of Holi festival had caused much humiliation, disgrace, physical discomfort and mental suffering to them.  The lower appellate court held that the judicial officer was protected by the Judicial Officer¶s Protection Act, 1850 but the State of U.P. was vicariously liable and passed a decree of Rs. 500 against the state of U.P.

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 The Allahabad High Court, on an appeal made by the State of U.P. held that the State was not liable because the act done by its servant was in the discharge of  his duties imposed by law.  Further, it held that the judicial officer was liable for the wrongful arrest of the plaintiff-respondents as the judicial officer was not exercising any judicial function but only an executive function while issuing warrants and therefore, the protection under the Judicial Officers¶ Protection Act, 1850 could not be available in this case.

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  Article 361 of the Constitution of India, the President, Governors and Rajpramukhs pramukhs of States States and Sarda Sardarr ± i ± Riyasat Riyasat of Jammu & Kashmir Kashmir are are exempted from the jurisdiction of any court in India.  Under several statutes public servants are protected against prosecution for  acts done in pursuance thereof:  Section 132 of the Criminal Procedure Code (Act V of 1898);  Section 16 of the Glanders and Farcy Act (XIII of 1899);  Section 24 of the Ancient Monuments Preservation Act (VII of 1904);

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 Section 16 of the Dourine Act (V of 1910);  Section 56 (1) of the Indian Electricity Act (IX of 1910);  Section, 272 of the Cantonments Act (II of 1924);  Section 117 of the Indian Factories Act (LXIII of 1948);  Section 97 of the Indian Lunacy Act (IV of 1912);  Section 11 of the Defence of India (Criminal Law Amendment) Act (IV of 1915);

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 Section 2 of the Indemnity Act (XXVII of 1919);  Section 293 of the Indian Income Tax Act (XLVIII of 1961);  Section 87 of the Indian Mines Act (XXXV of 1952);  Section 14 of the Indian Naval Armament Act (VII of 1923);  Section 24 of the Bombay Nurses, Midwives and Health Visitors Registration  Act (Bom XIV of 1954).).

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8. Trade Unions   As per section 13 of the Trade T rade Unions Act, 1926, every registered Trade Union shall be a body corporate with all attributes of a legal personality.  Section 18 of the Act enacts that no suit shall lie against a registered trade union, its members or officers in respect of any act done in contemplation or  furtherance of a trade dispute to which a member of the Trade Union was a party on the ground only  that such act induces some other person to break a contract of employment, or   that it is an interference with the trade, business or employment of some other  person or with the right of some other person to dispute of his capital or labour  as he wills.

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 All the Best!

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