Daily Reports 09.11.2015

Smt. Premalatha, teacher of Law of Torts (CP-03) came to the class in the first hour. She taught the following points.

1.       She has attended the debate competition. She wants now to start discussions in the class next week onwards. However students should not give importance to the social issues but to the legal aspects of the topics in these discussions. She proposed the topic for the next discussion as “ഇന്ത്യൻ ഭരണഘടനയും സംവരണതത്വങ്ങളും.”

2.       Students must also note what the High Court shall tell today on the Powers of the VigilenceDirector.

3.       The Prevention ofCorruption Act 1988 is relevant in this case.

4.       Corruption was noticed even in the first ministry of India headed by Jawaharlal Nehru.

5.       Thus a Prevention of CorruptionAct 1947 was enacted. But it was not sufficient to curtail corruption.

6.       Then K. Santhanam Commission was appointed to study why the Prevention of Corruption Act 1947 failed.

7.       The most important recommendation of the Commission was that even though Indian Penal Code defines who a public officer is, it is inadequate and certain sets of officers escape from the definition. Hence a new definition of public officer was necessary.

8.       Commission also recommended for the empowerment of the Investigation Agencies and Courts trying corruption cases.

9.       After the Hawala scam in 1997, in the Vineeth Narayanan case law gave some directives in this regard.

10.   In 2003 Central Vigilance Commission came into existence.

11.   In Kerala the special courts trying vigilance cases are called Vigilance Courts.

After these general remarks she came to the topic Law of Torts and mentioned the following.

1.       In the last class we were discussing the legal maxims damnum sine injuria and injuria sine damnum.

2.       When the law guarantees a right to A and a corresponding duty to B, B also has some rights and A has a duty to protect the same.

3.       Rightto vote is a fundamental right. Court has found that right is supreme and compensation was awarded for its infringement.

4.       The right of an MLA in Jammu & Kashmir to attend the Assembly was prevented by some officials and in that case the Court upheld the right and compensation was awarded.

5.       There are certain other cases where there may be losses, but no legal injury. For example if A & B start business at neighbouring shops and A sells goods at cheaper rate, B may face loss by way of lesser sales. Even though loss is there, there is no injury of legal right as trade competition is recognized by law being in force.

6.       In Gloucester Grammar School Case, the plaintiff has been running a grammar school at a certain place for a very long time charging a reasonable fee from its students.  The defendants also started an school there, but with a moderate fee only. Because of the consequent competition, the plaintiff suffered loss. In this case Court held that as there was no legal right violation, even if there is damage, there is no legal injury. Hence the Court did not award compensation.

Question : Explain Mental Element in Law of Torts.

Answer : The mental element in an offence or crime is called mens rea. (Note: Please note the Legal Maxim ‘Actusnon facit reum, nisi mens sit rea’). If A after making preparations kills B, there is a mental element or mens rea on the part of A and A is liable to get punishment under the offence Murder, because A has taken preparations for murder of B. But if the killing is accidental or is the result of an emotional outburst of a second then there is no mental element or mens rea for murder and hence A can be tried only for culpable homicide.

In the case of Law of Torts, normally there is no relevancy for mens rea as Torts are Civil Wrongs. But in certain cases mens rea may be attracted. Malice is applicable here. Malice means evil motive. Malice can be used in two connotations. They may be divided into two namely ‘malice inlaw’ and ‘malice in fact.’ Malice in Law is an act done by a person with knowledge but without motive. It means that the wrong doer knows the nature of the act, but has no evil motive at all.

In some other cases, act is done by a person with evil motive which is termed as ‘malice in fact.’ Malice in fact makes the offender liable, whereas malice in law generally does not make him liable.

In cases of deceit, defamation, etc mental element or mens rea is relevant in Law of Torts.

At that time, Mr. Rebin came into the class to invite us to the Seminar conducted by CEDC of the College on the Topic “Greek crisis – Understanding the plot and identifying the heroes and villains at 10.00 am today.” Our Principal inaugurated the seminar. Sri. Antony Roshan D’Silva presided over. Sri. Stanly Johny, Rahul V. Kumar, Subin Dennis and Anil Varma were the panelists. Unfortunately nobody except Sri. Rahul V. Kumar came prepared and the seminar could find only one hero, the present leader of Greece and no other villain than the hero. The seminar was a farce.

We may see some photographs  of the function.

Smt. Smitha, teacher for Consumer Protection Laws (CP-06) came in the second hour. Her lecture contained the following points.

1.       Consemer Protection Act was enacted in 1986.

2.       Prior to its enactment there were many other relevant acts in force with similar nature namely The Essential Commodities Act, 1955, The Bureau of Indian Standards Act, 1986,  AgriculturalProduce (Grading and Marking) Act, 1937 etc. These acts contained provisions to protect certain types of consumers. Example The Air (Prevention and Control of pollution) Act, 1981. Consumer protection Act addresses all kinds of consumers generally. Similarly it addresses all kinds of consumer products too such as electronic products, food products, etc.

3.       It also covers all services such as Insurance service, Banking Service, housing construction services, telephone services etc.

4.       Thus consumer protection act is a common legislation to protect all consumers in respect of all goods and services purchased by them.

5.       Prior to the enactment of Consumer Protection Act 1986, consumers had to approach ordinary civil courts for their remedies.

6.      While approaching Civil Courts the complainants had to go through all the procedures of Civil Procedure Code, 1908 to get their remedies. Such a procedure shall cause inordinate delay and is expensive.

7.       The Civil Courts have heavy work pressure and disposal of civil suits lag considerably.

8.       The enactment of the Consumer Protection Act 1986 is with an intention to get speedy remedies to the consumers with less cost and simplified procedure.

9.       Consumer DisputeRedressal Forums are constituted under this Act. These Forums function at three levels namely District Consumer Dispute Redressal Forums, State Consumer Dispute Redressal Commissions and National Dispute Redressal Commission.

10.   Civil Procedure Code is not applicable in the proceedings of Dispute Redressal Forums.

11.   The actions of the Forums are taken as summary proceedings.

12.   Thus the procedure in Dispute Redressal Forums are not tedious, not expensive and are fast.

13.   Thus the Consumer Protection Act 1986 treats consumers are a class and attempts to protect their rights.

14.   Normally definitions of almost all acts come in Section 2.

15.   If a complaint is lodged before a Consumer Dispute Redressal Forum, the first thing to consider is whether the complainant is a consumer.

16.   The consumers are of two types namely consumer of goods and consumer of services.

17.   As per Section2(1) (d) of the Consumer Protection Act, 1986, Consumer is any person who (1) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of that goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.

(2) hires or avails of any services  for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of that services other than the person who hires or avails of the services for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of that services for any commercial purpose.

Explanation : - Commercialpurpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of direct employment.

18.   Not only the purchaser of goods but its user also is a consumer.  In the case of services, beneficiary also is a consumer.

19.   Deferred payment here means as installment payment.

20.   When A is purchasing a sewing machine for tailoring works undertaken by him, then A is using it as livelihood and does not include under the term commercial purpose. Hence A is a consumer.

21.   But when A purchases sewing machines for his factory, it comes under the term commercial purpose. Hence he is not a consumer.

The class concluded there.