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NOVICE MOOT COURT COMPETITION, 2015

TABLE OF CONTENTS

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Index of authorities ……………………………………………………………………… (2)

Statement of Jurisdiction ………………………………………………………………... (3)

Statement of Facts………………………………………………………………………... (4)

Statement of Issues ………………….…………………………………………………… (5)

Summary of Arguments ………………………………………………………………… (6)

Arguments Advanced …………………………………………………………………… (7)

Prayer ……………………………………………………………………………………. (11)

MEMORIAL FOR THE PLAINTIFF 1


NOVICE MOOT COURT COMPETITION, 2015

INDEX OF AUTHORITIES
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Civil Procedure Code Section 19 (3)

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Notification :-

Notification No. l53, Gaz. ll/XXl.c.35 Dated ll.09.13 (3)


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Cases :-

Kuldeep Singh v. State of Himachal Pradesh 2008(14) SSC 795 (8)


Shripat Shankar Panchal vs. Municipal Corporation for Gr. Bombay2007(6) MhLj 478 (8)
Shiyramsharm Vs. Municipal corporation of Delhi(1192)ILR1Delhi390 (9)
Municipal Corporation of Delhi Vs. Subhagwanti and others, AIR 1996, SC 1750 (10)
Vadodra Municipal Corporation Vs. Purshottam V. Murjani 2014(9) SCJ 167, (10)

MEMORIAL FOR THE PLAINTIFF 2


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STATEMENT OF JURISDICTION

The Plaintiff humbly submits this memorandum for the plaint filed before this Honourable Court.
Section 19 of the Code of Civil Procedure laysdown the rule of territorial jurisdiction for cases of wrongs to
person or movable. The section 19 of Code of Civil Procedure is reproduced herein below:-

“19. Suits for compensation for wrong to person or movable- Where a suit is for compensation for
wrong done to the person or to movable property, if the wrong was done within the local limits of the
jurisdiction of one Court and defendant resides or carries on business, or personally works for gain,
within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the
plaintiff in either of the said Courts.” i

In the present case the plaintiff is residing in the colony No. 16 in the outskirts of Chandigarh. The
defendant is working for gain in Chandigarh. The cause of action has also arisen in Chandigarh hence as per
section 19 of the Code of Civil Procedure Court of Chandigarh has territorial jurisdiction to entertain and
adjudicate the suit.

It is submitted that, it is a suit for a compensation of rupees fifty lakhs. This honourable court wide
notification dated 11 September 2013 issued by the honourable high court of Punjab and Haryana at
Chandigarh, thereby the honourable high court has made the pecuniary jurisdiction of the Senior Civil judge
unlimited.

As per para 1(b), “Civil Judge (Senior Division) and Additional Civil Judge (Senior Division): shall
exercise the jurisdiction in respect of all cases. Provided that the Civil Judge (Sr. Divn.), at the time of
entrustment of suits for declaration where a dispute as regards genuineness of Will has been raised, shall
broadly examine the matter and in case he is of the opinion that there is complexity in the matter then the
same shall either be tried by himself or be entrusted to the officer of the rank of Additional Civil Judge
(Sr. Divn.).”ii

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i
Civil Procedure Code Section 19
ii
Notification No. l53, Gaz. ll/XXl.c.35 Dated ll.09.13

MEMORIAL FOR THE PLAINTIFF 3


NOVICE MOOT COURT COMPETITION, 2015

STATEMENT OF FACTS

[I] Om Prakash is a migrant worker from Uttar Pradesh and living with his family of four members in
colony no. 16 in the outskirts of the city Chandigarh.
[II] Ramadin; a contractor from U.P. was an acquaintance of Om Prakash in Chandigarh. He promised
to get him a job in his undertaking of taking Public and Private contracts pertaining to construction,
clearing and road maintenance.
[III] Due to surplus workers, Ramdin was unable to fulfil his promise.
[IV] Chandigarh decided to get manholes in the city cleared and floated the tenders for the purpose.
Ramdin, the contractor took this opportunity and quoted his rates to the administration among others
as well.
[V] Ramdin was selected by the MCC. He started working to get manholes in the city cleared. Ramdin
initiated the work near sector 50-51. The area was earmarked for the purpose and a caution board was
also installed. Ramdin took permission MCC to divert the road and diversion boards were mounted.
Three workers were given the work to dig out with the help of an earth moving JCB. The next day,
they started executing the work and dug a pit of 50 ft for clearance of the manhole in depth. They
carried out the work till noon and cleared around 500 meters.
[VI] During the evening, passer by Om Prakash in an inebriated state falls in the hole so dug.
[VII] After an hour, Ramdin visited the site, to see the progress. He saw some person battling for his life in
the pit. He immediately sought the emergency services of the administration to rescue him.
[VIII] After an hour, emergency services reached the spot for the rescue operation. He was then taken to
sector 32, hospital for the treatment and necessary medical aid.
[IX] On examination, it was found that he has inhaled methane and carbon monoxide resulting in asphyxia
and partial delusion of mental faculties.
[X] Now the family of Om Prakash sued the contractor Ramdin and Chandigarh Administration for the
negligence and claimed the compensation of 50 Lakhs.

MEMORIAL FOR THE PLAINTIFF 4


NOVICE MOOT COURT COMPETITION, 2015

STATEMENT OF ISSUES

ISSUE NO. 1

Whether the plaintiff suffered injuries due to the negligence on the part of the defendants?

ISSUE NO. 2

Whether the plaintiff is guilty of contributory negligence on his part?

ISSUE NO. 3

Whether the plaintiff is entitled to damages, if so to what extent ?

MEMORIAL FOR THE PLAINTIFF 5


NOVICE MOOT COURT COMPETITION, 2015

SUMMARY OF ARGUMENTS

ISSUE NO. 1

Yes the injuries suffered by the plaintiff were due to the careless and negligent act of the defendant.

The defendant failed to take due care and precautions while undertaking the duty of cleaning the manholes.

ISSUE NO. 2

No the plaintiff is not guilty of contributory negligence as he was not aware of the pit. There was no

barricading of the pit by the defendant. The defendant no. 1 was negligent in executing the work with

reasonable care, which resulted in causing the injuries to the plaintiff.

ISSUE NO. 3

The plaintiff is the only earning member in the family. All the four members are financial dependant

on the family. The negligent of the defendant has caused severe injuries. Therefore the plaintiff is entitled to

compensation of Rs. 5000000/-

MEMORIAL FOR THE PLAINTIFF 6


NOVICE MOOT COURT COMPETITION, 2015

ARGUMENT ANDVANCED

ISSUE NO. 1

It is submitted that the defendant no. 1 was carrying out the work of cleaning the manhole in sector

50-51 in Chandigarh city. For this purpose the defendant no. 1 had dug a pit 50 ft depth. He was under a legal

duty to exercise reasonable care in order to avoid acts or omissions, which can be reasonably foreseen to be

likely to cause physical injury to person or property. The defendant No. 1 miserably and grossly neglected

this duty of reasonable care, which he was under a legal duty to take. This omission on the part of the

defendant resulted in the said accident in which plaintiff sustained severe physical injuries by falling in the

pit dug by the defendant no. 1. The defendant No. 1 could have erected the barricading around the said pit

and a guard should have been left at the site in order to avoid the accident. Even the diversion boards were

unclear and misleading. Thus the injuries caused to the plaintiff were due to the gross negligence of the

defendant no. 1.

The Hon’ble Supreme Court in a landmark judgment explained the negligence; “Negligence is a

specific tort and in any given circumstances is the failure to exercise that care which the circumstances

demand. What amounts to negligence depends on the fact of each particular case. It may consist in

omitting to do some thing, which ought to be done, or in doing something which ought to be done in a

different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense

has no legal consequence, where there is a duty to exercise care, reasonable care must be taken to

avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to

persons or property. The degree of care required in a particular case depends on the surrounding

circumstances, and may vary according to the amount of the risk to be encountered and to the

magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area

of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person

does not enable the plaintiff who is always injured by the same act to claim unless he is also within the

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NOVICE MOOT COURT COMPETITION, 2015

area of foreseeable danger. The same act or omission may accordingly in some circumstances involve

liability as being negligent although in other circumstances it will not do so. The material

considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the

circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation

of cause and effect between the two.”iii

ISSUE NO. 2

It is submitted that the plaintiff is not guilty of contributory negligence. The plaintiff was not aware of

the manhole and the manhole was not properly barricaded and was not enclosed with barbed wires. Also the

signs installed by the defendants were not only ambiguous but also misleading as the plaintiff was illiterate;

he could not comprehend their meaning. No watchman was appointed at the relevant time. Thus the

defendant was negligent in delivering his duties of taking proper care while digging a manhole which

resulted in severe injuries to the plaintiff.

The court in the case of Shripat Shankar Panchal vs. Municipal Corporation for Gr. Bombayiv,

where the Plaintiff had filed suit against defendants for compensation towards their negligence on ground

that Plaintiff’s son lost his life due to falling into open manhole of gutter. Only a few protective measures

were taken by the Bombay Municipal Corporation. The spot wasleft uncovered and boundary was not

marked. Also there was no watchman appointed at the relevant time near the spot specially when that was a

service road and boys used to play regularly near the manhole.Thus there was negligence on the part of

Bombay Municipal Corporation. The Suit was decreed in favor of the plaintiff for compensation from the

defendants with interest from the date of the filing of the Suit till payment.

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iii
Kuldeep Singh v. State of Himachal Pradesh 2008(14) SSC 795
iv
2007(6) MhLj 478, MANU/MH/0422/2009,2009(8)SLR295

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NOVICE MOOT COURT COMPETITION, 2015

ISSUE NO. 3
It is submitted that the plaintiff is entitled to the damages of Rs. 50,00,000 as the plaintiff is the only
earning member in the family of four. All the four members are financial dependant on the plaintiff. The
negligence on the part of the defendant has caused severe injuries to the plaintiff which includes asphyxia
and partial delusion of the mental faculties. Asphyxia as defined by Oxford Advanced Learner’s Dictionary
“is a state of being unable to breathe, causing death or loss of consciousness”. Therefore the negligence on
the part of the defendant could also have resulted in the death of the plaintiff due to asphyxiation. The partial
delusion of mental faculties has resulted in impairment of the mental capacity of the plaintiff. Therefore the
plaintiff is entitled to compensation of Rs. 5000000/-.

The Delhi High court in the case of ShiyramsharmVs.Municipal Corporation of Delhiv, held
that in an action for negligence the plaintiff has to prove that the defendant was under a duty to take
reasonable care towards the plaintiff to avoid the damage complained of and that there was a breach of
duty on the part of the defendant. It is also a cardinal principal that an occupier of premises has a duty of
care to prevent physical harm to a visitor being caused by defects or dangers in his premises. The essential
factors in determining the liability for tortious act of negligence is whether the damages are of such a
kind, as the reasonable man would have foreseen.

Similarly in this case the defendant was under a duty to take reasonable carewhile digging a
manhole. Proper measures were not taken to alert the people in the vicinity of the manhole. Also the area
was not properly barbed and the manhole was not covered. Also no watchman was appointed at the said
time. Since the plaintiff suffered a physical harm caused by the negligence of the defendant,the defendant
is liable for the tortious act of negligence.

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v
Shiyramsharm Vs. Municipal corporation of Delhi(1192)ILR1Delhi390

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NOVICE MOOT COURT COMPETITION, 2015

In the case of Municipal Corporation of DelhiVs Subhagwanti and Orsvi, it was held that, the
doctrine of res ipsa loquitur applied in the circumstances of the case. It was found that the Clock Tower
was exclusively under the ownership and control of the Municipal Corporation of Delhi or its servants.
The Clock Tower was 80 years old and the normal life of the structure of the top story of the building,
having regard to the kind of mortar used, could be only 40 or 45 years. It was also not the case of the
appellant stated Municipal Corporation ofDelhi , that there was no earthquake or storm or any other
natural event which was unforeseen and which could have been the cause of the fall of the Clock Tower.
In these circumstances, the mere fact that there was fall of the Clock Tower tells its own story in raising
an inference of negligence on the part of the appellant.

The apex court in the case of Vadodara Municipal CorporationVs. Purshottam V. Murjanivii,
held that the Sursagar Lake which under the control and management of the Municipal Corporation of
Vadodara had been plying boats for joy rides and boating club. During the period in question, the contract for
plying the boats was given to Ripple Aqua Sports for managing the affairs of the Boating Club at the Lake
for the public. It was necessary that the contractor shall be taking insurance policies to cover the risk liability
of all persons using the equipment of the club. The Municipal Corporation had the duty to supervise the
boating club. On the said day, against the capacity of 20 persons, 38 passengers were allowed to ride in the
boat which capsized resulting in the death of 22 passengers. In the affirming result it was held that ,the
Ripple Aqua Sports and the Vadodara MunicipalCorporation are jointly and severally liable to pay the
compensation to the Complainants.Similarly in the said case the Municipal Corporation of Chandigarh stated
as defendant No 2 was also tortuously liable for negligence. The Municipal Corporation exercising statutory
power should also not be exempted from the liability for the negligent actions of the appointed Contractor.
When the Corporation exercised control over the Contractor, it was vicariously responsible for the negligence
of the Contractor.

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vi
Municipal Corporation of Delhi Vs. Subhagwanti and others, AIR 1996, SC 1750
vii
Vadodra Municipal Corporation Vs. Purshottam V. Murjani 2014(9) SCJ 167, AIR 2015SC321

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NOVICE MOOT COURT COMPETITION, 2015

PRAYER

In light of the issues raised, arguments advanced and authorities cited, the counsel for the Plaintiff
humbly prays that the Honorable Court be pleased to adjudge, hold and declare:

1. a decree of Rs. 5000000/- in favor of the plaintiff and against the defendants jointly or severely.

And pass any other order that this Honorable court may deem fit in the interest of justice and good
conscience.
And for this act of kindness, the counsel for the plaintiff shall be duty bound forever pray.

(Counsel for Plaintiff)

MEMORIAL FOR THE PLAINTIFF 11