Different kinds of persons who cannot sue on account of the personal disability

Ans. “Generally speaking”, Sir Frederick Pollock observes, “there is no limit to personal capacity either in becoming liable for civil injuries or in the power of obtaining redress for them.” 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, but as pointed out by Sir John Salmond this rule is subject to certain exceptions which may be considered under two heads

(i) Who cannot sue? (Discussed below)
(ii) Who cannot be used? (Discussed in next question)

Following are the persons who cannot sue on account of their personal disability:

(1) Convicts :

A convict is a person who was convicted for an offence and sentenced to imprisonment. Originally, under the common law, a convict had no right to sue for any injury to his property or for recovery of a debt. But now the position has changed. The Criminal Justice Act, 1948 has removed this disability of the convicts. Now convict can also bring an action for personal injury, such as asssault or slander or injury to his property even during his imprisonment.

The Indian law on the point is the same. A convict has right to sue a wrongdoer for personal injury or injury to his property.

In D.B Patnaik. v. A.P. the Supreme Court of India has held “convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. The Constitution guarantees other freedoms like right to acquire, hold and dispose of property for the exercise of which incarceration can be impediment. Similarly, a convict is also entitled to right of life and personal liberty guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.” A convict can sue for enforcement of his right against the defendant who causes injury to his person or property.

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Thus he can sue for battery or assault if prison authorities use excessive force for enforcing discipline in prison or apply force for improper purpose. In Smt. Kewal Pati v. State of U.P., a convict was attacked by another convict in Jail and was killed due the failure of the jail Authorities to protect him. The widow of the deceased convict filed a petition under Article 32 of the Constitution for damages. The Court awarded Rs. 1,00,000 as compensation to the widow for violation of her fundamental right to life under Article 21.

(2) Alien Enemy:

An alien enemy is a person of enemy nationality or a person residing or carrying on business in enemy territory, whatever may be his nationality.

At common law, an alien enemy had no right to sue in his own capacity. But if he was residing in the British Dominions he could sue with the express or tacit license of the crown.

In India, the above rule applies and under Section 83 of the Civil Procedure Code an enemy can sue in Indian for tort with the prior permission of the Central Government 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. 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 licences on that behalf granted by the central government shall for this purpose deemed to be an alien enemy residing in a foreign country.

(3) Husband and Wife :

Prior to the passing of the Law Reforms (Husband and Wife) Act, 1962 the position of a married women under the common law of England was not satisfactory. A married woman could not sue for any tort committed by a third person unless her husband joined with her as plaintiff and could not be sued unless her husband was made a defendant alongwith her.

Prior to 1887, the position of the women in society was very low and the husband was considered to be the owner of her body and property and it was necessary to join him as a party in all proceeding before the court.

The Married Women’s Property Act, 1882 has abolished this rule of procedure and she can now sue and can also be sued in cases of a tort committed by any person against her or by her against other. But until 1935 this right was confined only to her “private property”. This anomaly had been removed by the Law Reforms (Married Woman Tortfeasors) Act, 1935 and both married and unmarried women have been brought at par in such cases.

Suits by husband and wife against each other: According to the common law neither a married women could sue her husband nor the husband could sue his wife for any tort committed by one against the other. This was based on the concept that husband and wife are the some person in the eye of law.

The Married Women’s Property Act, 1882 While retaining this rule, accepted an exception to the rule that a wife could sue her husband for the protection of her personal property, as if she was an unmarried woman. But this rule did not apply to the husband and he could not sue
her wife.

The Law Reforms (Husband and Wife) Act, 1962 has abolished the above rule and has given equal status to both wife and husband to sue each other as if they were not married to each other. But under Section 2 of the Act the Court had been given discretion to stay the proceedings to prevent them from using it as a forum for trivial domestic disputes without any chance of substantial benefit to either of them.

Indian law : In India the marital status of Hindus, Muslims, Buddhists, Sikhs, Jains is regulated by their personal laws and not by the common law. Marriage under personal laws does not affect the capacities of parties for suing or for being sued nor does it confer any protection to any of the spouses for any tortious act committed by one against the other. Even if there was any anomaly in the Indian law similar in any manner to those in common law, it could not survive after the coming into force of the Constitution of India on 26 Jan, 1950. Article 14 of the Constitution guarantees equality before the law and equal protection of laws to every person. It is a guarantee against arbitrariness and unreasonableness. Article 15 prohibits discrimination on the ground sex. From this, it is clear that marriage does not affect the rights and liabilities of wife and husband to sue and be sued in respect of any tort committed by either of them against the other. The wife can sue the husband for any tort committed by him against her and the husband can sue the wife for any tort committed by her against him. The wife can sue another person for tort committed by him against her without joining her husband and similarly the husband can sue another person for tort committed against him without going the wife.

(4) Corporation :

A corporation is a legal ‘person’. It may sue for a libel or any other wrong affecting property or business. It cannot maintain an action for personal wrongs e.g., libel charging the corporation with corruption. There are certain torts which, by their nature, cannot be committed against a
corporation. For example, assault or false imprisonment. A limited liability company, not less than an individual, can maintain an action for slander without proof of special damage, where the words are calculated to injure its reputation in relation to its trade or business.

A Trade Union can, in general, maintain an action in tort, and an action for libel is no exception to that rule.

An unincorporated association, which was not registered as an association at the time of the publication of an alleged libel, cannot sue for the libel and it cannot sue after incorporation for the injury alleged to be done to its members before it was incorporated.

A corporation is liable for torts committed by its agents or servants to the same 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 on the course of doing an act which is within the scope of the powers of the corporation. It may thus be liable for “assault, false imprisonment, trespass, conversion, libel or negligence”.

(i) Whether corporation liable for fraud or malice: At one time it was though that a corporaton could not be held liable for wrongs involving malice or fraud on the ground that to support an action for such a wrong it must be shown that the wrong-doer was actuated by a
motive in his mind and that “a corporation has no mind”. Stevens v. Midland Countries Rly. Co. But it is now settled that a corporation is liable for wrongs even of malice and fraud. A corporation, therefore, may be sued for malicious prosecution or for deceit.

(ii) Can a corporation sue for defamation: A corporation may sue for a libel or any other wrong, affecting property of business. It cannot maintain an action for personal wrong, e.g., libel charging the Corporation with corporation, for it is only individuals and not the corporation in its corporate capacity who can be guilty of such an offence. If libel and slander affects the management of the trade or business of the corporation, it can itself sue for example where the corporation is charged with insolvency or with dishonest or income, patent management, it can sue for damages. A foreign corporation may sue and be sued for a tort, like any other corporation.

In India, a trade union may be registered or unregistered. In case of a registered trade union a suit for damages may be brought against the registered name of the trade union, but where it is an unregistered trade union, it may be sued in the name of one or more members on behalf of all members of the union. However, certain exemptions are enjoyed by the registered trade union, its officers or members in respect of liability in tort. Section 18 of the Trade Union Act, 1926, provides that no suit shall lie against them or any one of them for acts 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 breck a contract of employment, or that it interferes with the trade, business or employment of some person or with the right of some other person to dispose of his capital or labour as he wills.

(5) Minors (Infants) and Unborns:

An infant may sue for any wrong done to him. He must, of course, sue by his ‘next friend’. But can an infant bring an action for the injury suffered by him before his birth, i.e., when he was en ventre sa mere (when he was in his mother’s womb). There is no English case law on
the point.

In England Congenial Disabilities (Civil Liability) Act, 1976, gives a right of Action to an infant if he is born disabled due to the fault of some other person. Main features of the Act are:

(1) Action will lie if the child is born alive but disabled. But no compensation for loss of expectation of life would be awarded if the child has died before forty-eight hours of his birth.

(2) An action will lie if the normal child bearing capacity of the parents has been affected even before conception.

(3) An action is permitted even against a negligent mother.

(4) Contributory negligence of the parents can be pleaded as a defence.

In Union Carbide Corporation v. Union of India, the Supreme Court referred to the English Act and held that those who were yet unborn at the time of the Bhopal disaster and who are able to show that their congenital defects are traceable to the toxicity from the gas leak inherited
or derived congenitally will be entitled to be compensated.

(6) Insolvent Person :

The general rule is that an insolvent cannot bring an action for any wrong committed to his property because according to English law when a person is declared an insolvent all his property is vested in the trustee and he no longer remains the owner of his property. It is only the trustee who can bring action for any injury caused to the insolvent’s property keeping in view the interest of debtors. In India, the English law is followed in this respect.

But if any bodily injury is caused to an insolvent such as, assault defamation etc. he shall have right to bring action against the wrongdoer and official assignee or receiver cannot interfere. But where an injury is caused to both, to the person and property of the insolvent, the right of  action will be split, as regard to his person the insolvent can sue and as regards his property the action can be brought by the official assignee.In such a case both the insolvent and the official assignee can bring a suit jointly also.

(7) Foreign Sovereigns:
No foreign state can file suit in the Indian Courts for torts, unless such a state is recognised by India. Such states can only do so with the prior permission of the Central Government (Section 86 of the C.P.C.)

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