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PERSONAL DISABILITY TO SUE AND TO BE SUED[1]

QUESTION BANK

Q.1. What persons cannot sue, and what persons cannot be sued owing to personal disabilities?

Q.2. Enumerate the persons who cannot sue in Tort owing to personal disability.

Q.3. Who are the persons exempted from an action of torts?

Q.4. Who may sue in torts?

Q.5. Discuss the categories of persons against whom an action for Tort can’t be maintained.

Q.6. Who may sue in Tort?

SYNOPSIS

Personal Disabilities:-

A] Who cannot Sue?

Alien Enemy.
Husband and wife.
Foreign State.

B] Who cannot be sued?

Sovereign or King.
Foreign Sovereigns.
Public officials
Trade Unions.
Married Woman.

Personal Disabilities: –

In the law of Torts, as in other laws, the general rule is that all persons are entitled to sue and are liable to be sued. However, in recent times, even class action can be made by single or some persons from that class on behalf of himself and others, e.g. complaints as to non-receipt of minimum wages, non-providing safety materials, employing child labourers, harassment of pavement dwellers, etc. Moreover, even social interest groups can file writ petitions to the High Court or Supreme Court to enforce the rights of socially, educationally, economically backward classes, poor labourers, etc. However, as pointed out by Sir John Salmond, this rule is subject to certain exceptions, which may be considered under two heads.

Who cannot, Sue?
Who cannot be sued?

A] Who Cannot Sue[2]?

Ordinarily, all persons are competent to sue, but the following are exceptions to this rule. These are persons who cannot sue on account of their personal disability. They are: –

1. Convict or Felon[3]–

A felon or convict is a person against whom a judgment of death or penal servitude has been pronounced on any charge of treason or felony. In England, under the Forfeiture Act 1870, a convict whose sentence was in force and not expired could not sue for any injury to his property or recovery of debt. The Criminal Justice Act of 1948 removed this disability. However, under Common law, a convict may sue for any personal wrong, such as assault, battery, slander, defamation, etc.

In India, a convict may sue for Tort for his person and property. The forfeiture of the offender’s property is abolished except under sections 126, 127, and 169 of I.P.C.

2. Alien Enemy[4]: –

An Alien enemy means a person of enemy nationality or residing in enemy territory. Therefore, he cannot sue in his own right.

In Daimler V/s. Continental Rubber and Tyre Co[5]

Facts:- During the First World War, Germany and England were enemies of each other, so the company in England was managed by directors of Germany except one Britisher is an enemy company and cannot sue for recovery of the amount.

However, under section 83 of C.P.C., Alien enemies residing in India with the permission of the Central Government can sue in any court in India.

3. Husband and Wife: –

At common law, a married woman could not sue unless her husband joined her as a plaintiff; they were two bodies in one soul.

Under the Married Women’s Property Act 1882, she could sue in Tort in all respects as if she were unmarried. The Law Reform Act 1962 also provides that a married woman would sue in Tort as if unmarried. So, her present status is that of an unmarried woman.

Action between Husband and Wife: –

A wife cannot sue her husband for a tort, nor can a husband sue his wife. However, a wife may sue her husband for protecting and securing her separate property. Except for this, no wife or husband can sue the other in Tort. Thus, she cannot sue for personal wrongs such as assault, libel, or injury by negligence. This is based on the principle that husband and wife form one person in the eyes of the law. It is like that; the husband can break his hand but cannot take away his wristwatch.

In India:- The notion of the legal identity of husband and wife does not apply; therefore, an action in Tort by one against the other is maintainable.

4. Corporation[6] :-

A corporation may sue for any tort in the same way as an individual.

The qualifications are: –

The Tort must not be of such a kind, which makes it impossible to commit against the corporation, e.g. assault or false imprisonment.
In the case of defamation, it should be shown that the defamatory matter tends to cause actual damage to the corporation in respect of its property and business, e.g. corporation insolvency or mismanagement despite not having those things.

In Mayor of Manchester Vs. Williams[7]

Held: A corporation may sue for libel or any other wrong affecting its property or business. It cannot, however, maintain an action for personal wrongs, e.g., libel charging the corporation with corruption, for only individuals can be guilty of such an offence.

Unincorporated Associations and Trade Unions: –

Unincorporated associations of persons are not legal entities and cannot sue and be sued as such. Similarly, no action can be taken against trade unions or their officials for Tort played by such unions.

5. Infant or Child in mothers Womb: –

An infant can sue for Tort done to him – subject to a procedural rule that he must sue by his ‘next friend’ or ‘guardian’, but he cannot maintain an action for injuries sustained in the mother’s Womb.

In Walker V/s. Great Northern Railway[8]

Facts:- A pregnant woman was injured in a Railway accident, resulting in the child being born deformed.

Court Held:- Infant cannot maintain an action for an accident while in the mother’s Womb.

However, in a similar case, the Canadian Supreme Court granted compensation to the infant.

Even under uncodified Hindu law, an infant coparcener can claim re-opening of partition if already affected without keeping his share reserved. Under S. 20 of the Hindu Succession Act, 1956, the child in the mother’s Womb will be treated as a class-I heir if born alive subsequently.

6. Insolvent or Bankrupt[9]: –

A bankrupt or insolvent is under a disability to sue for wrong in respect of his property. It is because, in bankruptcy, all his properties vest in a ‘trustee’, according to English law, or the ‘Official Assignee’ or ‘Official Receiver’ in Indian law. In either system of laws, the right of action for Tort or injury to a property will vest in the trustee, assignee, or receiver for the benefit of insolvent creditors.

However, the right to sue is not taken away in cases of personal wrongs, such as assault, defamation, or sedition of servants.

7. Foreign State[10]: –

A foreign state cannot sue in the court of India unless the Government of India has recognised such a state.

B] Persons who cannot be sued[11]: –

There are nine classes of persons who cannot be sued in tort. They are-

1] Sovereign or King (doctrine of sovereign immunity)[12]: –

The fundamental principle of English law is that ‘the king can do no wrong; this is also known as the doctrine of sovereign immunity. King is not liable for the tortious acts of its servants acting in the course of their employment. He is not liable to be sued civilly and criminally for any wrong. However, this law has been considerably relaxed by the Crown Proceeding Act 1947.

In India, under Art.361 of the Indian Constitution, the President, Governors, and Rajpramukhas of states are not answerable to any court for any act done by them in the performance of their official duties. Art. 300 provides that the Union of India or a state may sue or be sued in relation to its affairs in cases like those in which the Dominion of India and the corresponding provinces of Indian States, as the case may be, might have sued or been sued if the constitution had not been enacted. In other words, the responsibility of the Modern State for Tort is the same as it was in British India.

The question of state liability for a tort committed by its servants came before the Supreme Court- in the State of Rajasthan V/s. Vidyawati[13]

Facts: In this case, the descendants of a person who died in an accident caused by the negligence of the jeep driver claimed damages. The Government maintained the jeep for the official use of the Collector of Udaipur. The accident occurred while it was being brought back from the workshop after repair.

Held:- The Supreme Court, while upholding the view of the Rajasthan High Court, held that the Government is liable vicariously for the tortious act of its servants.

The question of the State’s liability again came up before the decision of S. C.- in Kasturilal V/s. The State Of U.P.[14]

Facts:- The police seized the gold of the applicant; such seizer of Gold was under suspicion of being stolen property. But subsequently, it was found that the applicant had lawfully possessed it. Gold was misappropriated by police in Malkhana (Custody). The Head-Constable-of Malkhana misappropriated it and fled to Pakistan. Therefore, the Gold could not be returned to the applicant. So he sued for the recovery of Gold.

The Supreme Court Held:- that the State is not liable because the police officer committed the Tort in the exercise of sovereign powers.

2] Foreign sovereign[15]–

In England, the English Courts have no jurisdiction over an independent foreign sovereign unless he submits to the court’s jurisdiction.

In Mighell V/s. Sultan of Johore[16]

Facts: The Sultan of Johore was a foreign sovereign of an independent State. During his stay in England, he misrepresented himself as an English person. This misrepresentation induced the lady to love him and promised her to marry him. Subsequently, he refused to marry her, so she filed suit for breach of the promise of marriage.

Held: – The Sultan is not liable because no action lies against a foreign sovereign.

In India, the above principle of the English case is fully applicable. S.86 of the C.P.C. provides that no Ruler of a sovereign state may be sued in any state except with the permission in writing of the Central Government.

3] Ambassadors[17]: –

Foreign ambassadors, their families, and servants cannot be sued unless they waive their privilege by submitting to the court’s jurisdiction.

4] Public Officials[18]: –

No action lies against public officials in their official capacity with respect to torts committed by them because they are the representatives of the crown. However, public officials are liable for a tortious act they committed in their private capacity.

5] Infants[19]: –

Infants are liable for wrongs of omission as well as commission. Thus, the infant is liable for assault, false imprisonment, libel, slander, etc. But action based on contract cannot be changed into the action of Tort because, under contract, a minor’s agreement is void ab initio

Parents Liability: – As a general rule, parents are not liable for the Tort of infants. However, in the following exceptional circumstances, the parents can be held liable-

If the relationship between them is found to be of master and servants.

If the parents have afforded an opportunity to an infant to commit a tort.

6] Lunatic[20]: –

Ordinarily, lunacy is no defence for action in Tort. However, a lunatic will not be liable for those torts in which some mental condition forms an essential requisite of that Tort, e.g. assault, battery, false imprisonment, etc.

7] Corporations: –

A Corporation or a company cannot be sued unless (i) the act done was within the scope of the authority of an agent (directors, manager, etc.) employed by it, (intra-vires), and (ii) the act done was within the purpose of the incorporation.

A corporation can sue and be sued for i) defamation, ii) deceit, iii) malicious prosecution, etc. However, in the suit against the corporation, the plaintiff must prove that the servant or agent acted in the course of his employment, and the act complained of was done for the corporation’s benefit, which is within the scope of his authority (i.e. intra vires). If the act is ultra vires, the corporation is not liable.

8] Trade Unions[21]: –

In England – according to the Trade Disputes Act of 1906, no suit could lie against a trade union or its members for torts they committed on behalf of the union. However, in 1927, this rule was modified, and a trade union was held liable for promoting a general strike.

In India, the position is similar to that of English law. By the Indian Trade Union Act 1926, a registered trade union cannot be sued (or its funds cannot be proceeded against) for any act done by its officers in contemplation or furtherance of a trade dispute. However, it can be sued if it induces persons to break a contract of employment if it interferes with the trade, business, or employment of some other persons or with the right of other persons to dispose of their capital or labour as they wish.

9] Married Woman: –

[Referred earlier in earlier point Husband and Wife.]

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[1] दावा करण्यासाठी अथवा दावा होणेविरुध्द व्यक्तीगत अपात्रता [मुकदमा करने या मुकदमा करने के लिए व्यक्तिगत अयोग्यता]

[2] अपकृत्यासाठी कोण दावा करु शकत नाहीत? [टोर्ट के लिए कौन मुकदमा नहीं कर सकता?]

[3] शिक्षा झालेला/शिक्षा भोगत असलेला कैदी / [दोषी/दोषी कैदी]

[4] परकीय शत्रु [विदेशी दुश्मन]

[5] 1916

[6] महामंडळ/कंपनी/संस्था इ. [निगम/कंपनी/संगठन आदि]

[7] 1891. Q.B.

[8] 1890

[9] दिवाळखोर / दिवाळखोर

[10] परकीय राष्ट्र [ विदेशी राष्ट्र]

[11]अपकृत्याबद्दल कोणत्या व्यक्ती विरुध्द दावा केला जाऊ शकत नाही? [किस व्यक्ति पर अत्याचार के लिए मुकदमा नहीं किया जा सकता है?]

[12] सार्वभौम/सर्व सत्ताधिष [ संप्रभु/सर्वशक्तिमान]

[13] 1963

[14] AIR 1965 SC

[15] परकीय सत्ताधिश [ विदेशी शासन]

[16] 1894

[17] राजदूत [ दूत]

[18] प्रशासकीय अधिकारी [ प्रशासी अधिकारी]

[19] / बालक [ बच्चा]

[20] वेडा [पागल]

[21] कामगार संघटना [ट्रेड यूनियन]