Judgement This Second Appeal has been filed by the plaintiff. The plaintiff filed a suit being Money Suit No. 12 of 1986 before the Munsiff No. 1 at Tezpur. 2. The brief facts are as follows :- The defendant is a company incorporated under the Companys Act having its registered office at Silpukhuri, Gauhati. Its business is to carry passengers from one place to another place by omnibuses. The plaintiff who is an advocate of the Tezpur Bar undertook journey from Gauhati to Tezpur by the omnibus of the defendant company on last 2-7-88. The omnibus was numbered as AMK-707 and it started from Gauhati towards Tezpur at 7.15 a.m in the morning hours. The plaintiff had the Embarcation card (ticket) for Rs. 30/- and he was allotted with the seat No. 28 of the said vehicle. The omnibus started from its counter at Paltanbazar of Gauhati City. The plaintiff during the said journey carried some valuable documents/paper/law books but during the said journey, there was heavy downpour of rain water. There were small holes on the roof top of the omnibus and water poured down inside the vehicle wetting the seat cushion and the backrest of the plaintiff and that is not all but his garments were totally wet. The rain water also soaked and damaged the luggage and the valuable documents etc. of the plaintiff which were kept on the side tray inside vehicle. Consequently for such damage the plaintiff had to suffer much both bodily and mentally. The aluminium rod fitted inside the vehicle from front to the end by the side bearing the curtains which were soaked with water also time and again lapped to plaintiffs body by the severe jerks thrusting him upwards during the journey due to bouncing of the body of the omnibus. It was the case of the plaintiff that he being a passenger of luxurious bus and not being a gratuitous passenger the owner of the bus is liable to carry him from the place where journey started to the place of destination i.e. Guwahati to Tezpur and as the defendant failed to do its duty due to its negligence, the plaintiff is entitled to exemplary damages in view of the magnitude of the injury and damage sustained by him and so in the suit he had prayed for recovery of Rs. 10,000/- arising out of malfeasance and misfeasance of the defendant. For damage caused to him in respect of his belonging he prayed for decree of Rs. 4,000/- and for damage in respect of bodily and mental pain, sufferings etc. he has prayed for decree of Rs. 6,000/-. The defendant contested the suit of the plaintiff by filing written statement where it has averred that the suit is bad for non-joinder of necessary parties and the Tezpur Court has no jurisdiction to try the suit. The allegation in the plaint has totally been denied by the defendant. Three issues were framed by the Court below and to prove the case of the plaintiff, he examined himself apart from one more during evidence. The judgment was passed by the Court below after deciding all the issues. 3. The learned Munsiff decreed the suit for an amount of Rs. 5000/- as general damage with interest at the rate of Rs. 6% per annum on the decretal amount from the date of decree till realisation of the decretal amount. An appeal being Money Appeal No. 2 of 1992 was filed before the learned Assistant District Judge, Sonitpur and the learned Judge allowed the appeal and dismissed the suit. Hence this Second Appeal. 4. The only substantial question of law formulated in this appeal is as follows :- "Whether the First Appellate Court could reverse the decree for tortious damages with costs in favour of the Appellant/Plaintiff stating that the appellant/plaintiff voluntarily boarded the passenger bus run by the respondent/defendant knowing its condition to be bad though no such plea was raised by the respondent/defendant in his written statement and no issue on such plea was involved in the suit"? 5. I have heard Shri T. C. Khetri, learned Advocate for the appellant and Shri A. Sarma, learned Advocate for the Respondent. A case damage is the gist of action and the plaintiff will fail if he cannot prove it. The law of Torts is that it must be a case in which a private person may recover damages for loss sustained by him in consequence thereof. Whether damage is small or large that is not important, for the action may have been brought to establish the point or principle or to vindicate wounded feelings or character. A person is liable from the moment he commits the torts. Whether damage is small or large that is not important, for the action may have been brought to establish the point or principle or to vindicate wounded feelings or character. A person is liable from the moment he commits the torts. The distinction between tort and contract is that the duties in the former are primarily fixed by law while in the later they are fixed by the parties themselves. Further in torts the duties towards person generally in contract, it is towards specific person or persons. The general conditions of liability are as follows :- (i) In general a tort consists in some act done by the defendant whereby he has without just cause or excuse causes some form of harm to the plaintiff. The law of torts exists for the purpose of preventing man from hurting one another, whether in respect to the property, their persons, their reputations or anything loss which is theirs. Fundamental principle of this branch of law is that one should hurt nobody by word or deeds. An action of torts therefore, is usually a claim for pecuniary compensation in respect of damage suffered as a result of invasion of a legally protected right. 6. Regarding the general principle of liability in torts it can be said that an unlawful, intention and positive act which inevitably caused damage to the plaintiff is prima facie actionable, at least if the damage is to the plaintiffs person or tansible property as distinct from economic interest. In this connection it will be profitable to quote a passage from Salmonds Law of Torts :- Salmond argued that the second of these alternatives was that which had been accepted by our law, "Just as the criminal law consists of a body of rules establishing specific offences, so, he said", the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted for an alleged offence, or sued for an alleged tort, it is for my adversary to prove that the case falls within some specific and established rule of liability and not for me to defend myself by proving that it is within some specific and established rule of justification or excuse". Whether I am prosecuted for an alleged offence, or sued for an alleged tort, it is for my adversary to prove that the case falls within some specific and established rule of liability and not for me to defend myself by proving that it is within some specific and established rule of justification or excuse". For Salmond there was no English law of tort, there was merely an English law of torts, that is, a list of acts and omissions which, in certain conditions were actionable. This book is entitled the Law of Torts, not the Law of Tort". The forms of action, "Salmond said elsewhere" are dead, but their ghosts still haunt the precincts of the law. In their life they were powers of evil, and even in death they have not wholly ceased from troubling". But it is very doubtful whether Salmonds theory is true now, or ever has been true. There is not a single case in the reports in which an action has been refused on the sole ground that it was new. It has been clearly established ever since the memorable judgment of Sir John Holt C.J. in Ashby v. White that mere novelty is no bar to an action, I wish never to hear this objection again "said Sir Charles Pratt, C.J. sixty years later. This action is for a tort; torts are infinitely various, not limited or confined, for there is nothing in nature, but may be an instrument of mischief. Similar statement may be found in more modern cases. The novelty of a claim may indeed raise a presumption against its validity. So a Court may remark :" It is enough to say that the world has gone on very well without such actions as these; and I doubt whether it would continue to do so if such things were allowed or, "I would not exclude the possibility of such an action, but none as yet ever appeared in the books. And this will not be the first". But there is undoubtedly power to recognise a novel claim if justice so requires although the process may take time. And this will not be the first". But there is undoubtedly power to recognise a novel claim if justice so requires although the process may take time. We can trace back to particular decisions the origin of many torts which are recognised as such at the present day of malicious prosecution of deceit in Pusley v. Freeman of inducement of breach of contract in Winsmore v. Greenbank of libel and of negligence. Again, it was only in 1964 that the existence of tort of intimidation was definitely established, the House of Lords affirming that it had power to adopt the common law to changing social circumstances. Again, although in 1888 a claim for damages for careless statement causing economic loss was dismissed as, "an attempt to manufacture a new action which the Court would not sanction, yet in 1963 the House of Lords recognised such a tort, and in 1977 re-stated its boundaries. In 1979, the House of Lords recognised a great expansion in the tort of passing off. But there are limits, difficult to state, but understood by most practitioners", to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations; that must be left to legislation". No English could would, or perhaps could utter such a statement as, "The law is what the law should be." To some extent the critics seem to have misunderstood Salmond. He never committed himself to the proposition, certainly untenable now, and probably always so, that the law of torts is a closed and inexpensible system. To say that the law can be collected into pigeon holes does not mean that these pigeon holes may not be capacious, nor does it mean that they are incapable of being added to. "Salmond merely contended that these changes were not exclusively referable to any single principle. In this he was probably right. The factors relevant to a decision to impose, or not to impose, liability are many and varied." 7. Regarding damage we must bear in mind that there must be wilful and conscious wrong doing or improper motive. In this case we are not concerned with that, but let us consider the second fault. In this he was probably right. The factors relevant to a decision to impose, or not to impose, liability are many and varied." 7. Regarding damage we must bear in mind that there must be wilful and conscious wrong doing or improper motive. In this case we are not concerned with that, but let us consider the second fault. Regarding that Salmond pointed out as follows :- "Salmond said that a second condition usually demanded by the law for liability in an action of tort was the existence of either wrongful intention or culpable negligence on the part of the defendant. He wrote as follows :- "Pecuniary compensation is not in itself the ultimate object or a sufficient justification of legal liability. It is simply the instrument by which the law fulfils its purpose of penal coercion. When one man does harm to another without any intent to do so and without any negligence, there is in general no reason why he should be compelled to make compensation. The damage done is not thereby in any degree diminished. It has been done, and cannot be undone. By compelling compensation the loss is merely shifted from the shoulders of one man to those of another, but it remains equally heavy. Reason demands that a loss shall lie where it falls, unless some good purpose is to be served by changing its incidence, and in general the only purpose so served is that of punishment for wrongful intent or negligence. There is no more reason why I should insure other persons against the harmful results of my own activities, in the absence of any mens rea on my part, than why I should insure them against the inevitable incidents which result to them from the force of nature independent of human actions altogether. More recently a Canadian author has reasserted the point. "One value at the heart of tort law is the notion of individual responsibility, something that is central to Western civilisation". Hence Salmond was logically compelled to say of the decision in Rylands v. Fletcher, 19 which is founded upon a theory of strict liabi-lity : "No decision in the law of torts has done more to prevent the establishment of a simple, uniform, and intelligible system of civil responsibility". 8. But this theory of author later on was given a go-bye and it was somehow widened. 9. 8. But this theory of author later on was given a go-bye and it was somehow widened. 9. From this background now let us have a look at the case in hand. It has been found by the learned Judge that the plaintiff with his eyes open boarded the bus and undertook the journey. It was further found by the learned Judge that there was no damage to the plaintiff. The plea put up by the plaintiff that because of the condition of the bus he fell ill and suffered, was not accepted inasmuch as the plaintiff undertook the journey on 2-7-88, but the prescription regarding ailment is dated 11-2-89, 16-1-89 and 9-3-92. It is the finding of the learned Judge that none of these papers can be correlated with any ailment of the plaintiff or journey undertaken by him on 2-7-88 by the bus No. AMK-707. This being the position, there is no merit in this Second Appeal and the same is dismissed. 10. However, I leave the parties to bear their own costs. Appeal dismissed.