Study Of Issues And Challenges While Discharging Of Torts
Introduction
The law of tort is a branch of civil law. The word ‘‘tort’’ is derived from the Latin word “tortum” which means twisted or crooked or wrong and is in contrast to the word rectum which means ‘‘straight’’. In Roman law it is called delict Torts are civil wrongs wherein injured party can seek legal redressal for the injury suffered, in a claim injured party is entitled to claim “damages”
When a person commits any wrongful act; it is a tort and creates liability/charge to pay damages to the person against whom such wrongful act has been committed under circumstances this liability comes to an end. This is known as the discharge of torts. When a right of action is vested in a party for a tort committed by another, it may be discharged by any one of the following methods: (1) By waiver. (2) By accord and satisfaction. (3) By release. (4) By judgment recovered and res judicata. (5) By the statute of limitations. (6) By death.
1. By waiver- waiver means to give up; the aggrieved or wronged person gave up his right of action against the wrongdoer. For some reason and do not proceed in a court of law. For instance, in Verchures Creameries v. Hull and Netherlands S.S. Co.,[1] where the plaintiffs whose goods had been improperly delivered by the defendants to one Beilin, sued Beilin for the price instead of bringing an action for conversion against him, it was held that they could not subsequently sue the defendants for breach of duty, since they had elected to waive the tort.
2. By accord and satisfaction- Accord means an agreement whereby a person agrees to accept some valuable consideration instead of the right of action that he has against the other. Satisfaction means actual payment of the amount of consideration so agreed to when there is an agreement and it is satisfied by its executors, the agreement is termed as accord and satisfaction and it discharged the tort. The consideration may be treated in money or compensation which is accepted by a wronged person or his legal heirs and thereby settled the dispute do not proceed in a court of law.
When the agreement is executed and satisfaction has been made the agreement is called accord and satisfaction and operates as a bar to the right of action. An accord and satisfaction in favor of one joint tort-feasor operate in favor of all when the injury is one and indivisible. Where damages are to be recovered, accord and satisfaction is good plea action for libel and personal injuries.
3. By release- Any right to surrender can be known as release. Unless it is incorporated
in the formal contract, it is signed, sealed, and distributed and a release under English law is not valid without consideration. However, under Section 63 of the Indian Contract Act in Indian law, the release is not indispensable. Hence, even though it is not incorporated in a structured document, a legal release may be rendered without consideration. A release can only be true in English law if it is made by an act and not otherwise. However, if a man is forced to perform a release through fraud, it is not mandatory to release.
4. By judgment recovered and res judicata- Judgement by the court of law. If the matter is decided conclusively and finally by the competent court then for the same cause of action, between the same parties the matter cannot be agitated again and the further or fresh suit is debarred.
“This principle is based on maxim Res –Judicata[2] Means thing once decided cannot be redecided, more than one action does not lie on the same cause of action and between the same parties. The doctrine of Res-Judicata rests upon the principle that one should not be vexed twice for the same cause and there should be the finality of litigation.” [3] The object of the principle is to prevent endless litigation. It also prevents a new investigation so that the same person cannot be harassed again and again in various proceedings upon the same cause of action.
5. By the statute of limitations-There is a difference between wrongs that are actionable per se, and the ones which are actionable only if, the plaintiff is successful in proving that he suffered actual damage. The span of limitation runs, in the first case, from the time when the wrongful act is perpetrated; and secondly, from the time of the plaintiff’s first sustaining real injury.
In England, the Limitation Act, 1980 specifies the time during which actions of tort must be brought. The time within which cases can be filed in Indian Courts against wrong-doers for claiming remedy is governed by the provisions of the Indian Limitation Act, 1963 . Consequently, in cases of medical negligence, it has been concluded that cause of action emerges on the date when the act of negligence is committed; and if the effects of the negligence are latent, then either on the date when it is discovered or the date when the plaintiff by the reasonable exercise of diligence, could have discovered. The limitation will eventually start to run. “In cases of trespass, the Bombay High Court concluded that trespass will go on as long as illegal entry lasts, and the same being a continuing wrong, it will be covered under section 22of the Indian Limitation Act, 1963.” .
6. By death- “This concept is based on the maxim ‘actiopersonalismoritur cum persona’ which means that the personal right of action of a person dies with him. There can be two circumstances in case of death of parties:
• Death of the person whose legal right has been infringed
• Death of the person who has committed the tort.
If the person on whom a tort is committed dies, the legal successor can claim damages from the wrongdoer for proprietary loss, for example, if the tort was committed such that damage was caused to the property as in cases of nuisance, trespass, negligence, fraud, etc. Although in cases of personal tort the wrongdoer cannot be sued. Moreover, in case of the death of a wrongdoer, the legal successor is not liable for the personal tort of the wrongdoer.”
• “A co-pilot in airlines stayed in Hotel Oberoi Continental, a 5-Star hotel having the facility of a swimming pool. While diving his head hit on the bottom of the swimming pool, which resulted in serious head injuries to the plaintiff. In the single judge decision, the plaintiff was allowed Rs. 50 Lakhs as Compensation. The above decision was appealed before the Division Bench. While the appeal was pending, the plaintiff died. It was held that the plaintiff’s suit abated on his death, and therefore, his legal representatives had no right to pursue the case and could not seek substitution in this case. The earlier Single Judge decision granting compensation was reversed. In E.I. Ltd. v. Klaus Mittelbachert.”
be brought.
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WRITTEN BY
NAME: ADITI AGRAWAL
COLLEGE: SYMBIOSIS LAW SCHOOL, HYDERABAD
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