TORT 137 Public Law Compensation and Private Law Damages — Law of Torts Notes for Judiciary

Public Law Compensation and Private Law Damages: Two Awards That Look Alike and Are Not

Both are sums of money ordered to be paid to an injured person, and there the resemblance ends. Private law damages are the remedy for a tort: they are assessed head by head, measured by the plaintiff's loss, and their object is restitutio in integrum. Public law compensation is relief granted in the writ jurisdiction for the violation of a fundamental right: it is assessed summarily, is not tied to proved heads of loss, and its object is to vindicate the right and to mark the State's responsibility, with a palliative payment to the victim in the meantime. Treating the second as though it were the first is the commonest error in this field, and it leads claimants to accept as a settlement what the Court intended as an instalment.

1. The Comparison

	Private law damages	Public law compensation
The wrong redressed	A tort	The violation of a fundamental right
The forum	A civil court, in a suit	The Supreme Court under Article 32 or a High Court under Article 226
The basis of liability	Fault, proved against the defendant or his servant	The violation itself. Fault need not be proved
The object	To restore the plaintiff so far as money can	To vindicate the right, to deter its repetition, and to relieve the victim at once
How it is assessed	Head by head, on evidence, applying settled measures and multipliers	Summarily, on affidavits, as a lump sum
Heads of claim	Pain and suffering, loss of amenity, loss of earnings, future care, special damages	Not separated. The sum reflects the gravity of the violation
Is it exhaustive	Yes. The decree concludes the claim	No. It is a palliative, and a suit may follow
Immunity	Sovereign immunity may be pleaded for the inalienable functions	No defence whatever
Limitation	The Schedule to the Limitation Act, 1963	No article, but delay may defeat the petition
Court fee	Ad valorem	A fixed fee
Discretion	None. The plaintiff who proves his case is entitled to a decree	Discretionary. Delay, suppression or a disputed fact may lead to a refusal
Against a private party	Available	Not available

2. The Character of the Public Law Award

It rests on a liability distinct from liability in tort. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, holds that the award is made in exercise of the power available to the constitutional courts for the enforcement of fundamental rights, and that the liability is a public law liability to which the defence of sovereign immunity is not available.
It is a remedy in public law and not a substitute for a private law remedy. The Court has repeatedly said so, and the reason is that a private law remedy would require proof of the ingredients of a tort, which the public law remedy does not.
It is described as a palliative. Rudul Sah v. State of Bihar, (1983) 4 SCC 141, expressly awarded compensation as an interim measure, leaving the petitioner free to sue for the balance.
It carries an element of deterrence. The Court has treated the award as marking the seriousness of the violation and as a means of impressing responsibility on the State, which is why the language of exemplary damages appears in some of the decisions.
It is not reduced by the victim's contributory conduct in the way a tort award is, because the question is whether the right was violated and not how the loss should be shared.

3. The Adjustment

The two remedies are additional and not alternative. The existence of a remedy in tort is no reason to refuse relief in the writ jurisdiction, and the grant of relief there does not bar a suit.
What is paid in the writ jurisdiction is adjusted against whatever the suit yields, so that there is no double recovery. The public law award operates as a payment on account.
The practical sequence is therefore the writ first and the suit afterwards, where the quantum justifies it.
A claimant who treats the writ award as final may lose a great deal. In a catastrophic injury the properly assessed dependency, future care and loss of earnings will frequently be several times the sum awarded summarily, and the difference is recoverable only by suit.
The State cannot plead the writ award in bar, and a plea that the claim has been satisfied is answered by the express terms in which such awards are made.

4. Where the Public Law Award Is the Better Remedy

The situation	Why
Custodial death or torture	Sovereign immunity would otherwise be pleaded, the facts are peculiarly within the authorities' knowledge, and the family needs money now
Illegal or prolonged detention	The violation is documentary and admits of no factual dispute, so affidavits suffice
Mass violations and disappearances	Only a constitutional court can combine compensation with structural directions binding on the State
Environmental harm	Absolute liability and the polluter pays principle are applied directly, and continuing mandatory directions can be made
Where the claimant cannot afford an ad valorem fee	A large claim carries a large fee, and the writ carries a fixed one
Where speed matters more than quantum	Months against years

5. Where the Private Law Award Is Necessary

Where no fundamental right is engaged, as in ordinary governmental carelessness causing property or economic loss.
Where the facts are seriously disputed, since a writ court cannot resolve a genuine contest of evidence and will relegate the petitioner to a suit.
Where the quantum requires a trial, as with a catastrophic personal injury whose future care, prosthetics, attendant charges and loss of earning capacity must be costed over decades: TORT 084 and TORT 090.
Where the defendant is a private party, the fundamental rights being guaranteed against the State.
Where the claimant wants a decree that concludes the matter, since the writ award by its nature does not.

6. The Measure in Each

	Private law damages	Public law compensation
The starting point	The recognised heads applicable to the injury	The gravity of the violation and the circumstances of the victim
Pecuniary loss	Computed: earnings, multiplier, future prospects, deductions	Taken into account broadly, without a formal computation
Non pecuniary loss	Conventional figures for pain, suffering and loss of amenity	Subsumed in the lump sum
Evidence required	Medical evidence, income proof, expert evidence on future care	The record of the violation, and material about the family
Deduction for contributory fault	Yes, proportionately	Not in the same way
Interest	Awarded from the date of the petition or the claim	Ordinarily directed with a time limit for payment
The State's recovery from the officer	Not ordinarily in issue	Frequently preserved expressly in the order

⚠ Why the two measures diverge, and what a claimant should actually do

The divergence is not an accident of practice but follows from what each remedy is for. A tort award exists to put a particular plaintiff, so far as money can, in the position he would have occupied but for the wrong, and that requires a trial: somebody must prove what he earned, what care he will need, how long he would have worked and what the injury has cost him. The constitutional award exists to establish that the State violated a right and must answer for it, and that does not require any of those things; what it requires is speed, because a remedy that arrives eight years later vindicates nothing, and a figure the Court can fix on the material before it. The practical consequence is the one claimants most often miss. The sum awarded in the writ is not the Court's view of what the injury is worth; it is what the Court could properly order without a trial, and in a serious case it will be a fraction of the properly assessed figure. The correct course is almost always to take the writ relief at once, for the declaration, the directions and the immediate payment, and then to sue for the balance, pleading the public law award and offering to give credit for it. A claimant who does only the first has accepted an instalment as a settlement; one who does only the second will wait years for money he could have had in months.

7. The Position Stated Shortly

1. Private law damages redress a tort; public law compensation redresses the violation of a fundamental right.

2. The first is assessed head by head on evidence at a trial; the second is assessed summarily on affidavits as a lump sum.

3. Nilabati Behera holds the public law liability to be distinct from liability in tort, and sovereign immunity to be no defence to it.

4. Rudul Sah awarded compensation expressly as a palliative, leaving the petitioner free to sue.

5. The public law award carries an element of vindication and deterrence which a compensatory award does not.

6. The two remedies are additional and not alternative, and what is paid in the writ is adjusted against whatever the suit yields.

7. The writ is the better remedy for custodial violence, illegal detention, mass violations and environmental harm, and where speed or the court fee matters.

8. The suit is necessary where no fundamental right is engaged, where the facts are disputed, where the quantum needs a trial, or where the defendant is private.

9. The writ award is not the Court's view of what the injury is worth, but what it could properly order without a trial.

10. The correct course in a serious case is to take the writ relief first and then sue for the balance, giving credit for what was paid.