Ritesh Shah v.

Tanmay Thakkar i

TABLE OF CONTENTS

S.No. PARTICULARS PAGE

1. TABLE OF CONTENTS ……………………………………………….. i

2. INDEX OF AUTHORITIES …………………………………………… ii

 Books and Commentaries

 Cases
 List of Abbreviations

3. STATEMENT OF FACTS ………………….………………….……… v

4. STATEMENT OF JURISDICTION ……..…………………………… vii

5. QUESTIONS PRESENTED …………………………………………... viii

6. SUMMARY OF PLEADINGS ….…………………………………….. ix

7. WRITTEN SUBMISSIONS ………………………………………….. 1

8. PRAYER ………………………………………………………………... 11

INDEX OF AUTHORITIES

MEMORIAL ON BEHALF OF THE PLAINTIFF

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[ BOOKS & COMMENTARIES ]

S.No. Author and Subject

1. Ratanlal and Dhirajlal, The Law of Torts,

(Wadhwa & co. Nagpur)

2. Clerk and Lindsell, Clerk and Lindsell on Torts

(Sweet &Maxwell)

3. R.F.V. Heuston and R.A. Buckley,

Salmond and Heuston on The Law Of Torts,

(Universal Law Publishing Co. Pvt. Ltd.)

4. W.V.H. Rogers, Winifield and Jolowicz on tort,

(Sweet & Maxwell, London)

5.Margaret Brazier and John Murphy, Street on Torts,

(Butterworths,London, 10th – ed, 1999)

[ CASES ]
S.No. Case Name Citation Cited At
:
1.Montreal v. Montreal Locomotive Works Ltd (1947) 1 DLR 161 1,2

2.Silver Jubilee Tailoring House v. Chief inspector of (1974) 3 SCC 498 2

MEMORIAL ON BEHALF OF THE PLAINTIFF

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Ritesh Shah v. Tanmay Thakkar iii

Shops and Establishments,

(1986)1 SCC 32,p.39 2

3.M/s P.M. Patel and Sons v. Union of India
(1914) AC 62, p.67 3
4 Plumb v. Cobden Flour Mills Co. Ltd
(1942) 2 All ER 464 3
5. Canadian Pacific Rly. Co. v. Lockhart
(1891) AC 225 5
6. Smith v. Baker & Sons
(1962) 2 All ER 978 5
7. Woolridge v. Summer
(1935) 1 K.B 156 6,8
8. Haynes v. Harwood
(2000) 1 AC 360 7
9. cf. Reeves v. M.P.C.
(1999) 2 AC 455, p.509 7
10. Frost v. CC. South Yorkshire
(1959) 1 W.L.R. 966 7,8
11. Baker v. T.E. Hopkins & Sons Ltd.
(1988) AC 431, 443 7
12. Ogwo v. Taylor
(1942) 1 All ER 489 7
13. Morgan v. Aylen
(1795) 6 TR 411,412 10
14. Stone v. Cartwright

LIST OF ABBREVIATIONS

D.L.R. ……………………………………….. Dominion Law Reporter

SCC…………………………………………. Supreme Court Cases

All ER………………………………………. All England Law Reports

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AC…………………………………………. Appeal Cases

K.B………………………………………… King’s Bench

W.L.R……………………………………… Weekly Law Reporter

T.R…………………………………….... Dunford and East’s Term Reports

p. ………………………………………….. Page

Ltd. ……………………………………….. Limited

Ed…………………………………………. Edition

STATEMENT OF FACTS

The respondent most respectfully showeth:

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Ritesh Shah v. Tanmay Thakkar v

1. That Daylight Fishing Co. (P) Ltd. was a famous fish export firm in

Cochin which employed several fishermen who were paid according to the

amount of fishes they caught daily.

2. That the firm gave them the required training and infrastructure and taught

them basic safety and precautionary measures while fishing while laying

specific emphasis that they were not to leave the boat and get into water.

3. That Mallavi Thillapalli , a fisherman employed by the firm , was on his

way back from fishing one morning when the net in which the fish were

kept fell into the water.

4. That this event took place near the shore and Mallavi being an expert

swimmer jumped into the water to get back his fish even though he was

expressly told not to leave the boat and go into the water under any

circumstance.

5. The waves proved too strong and he started to drown.

6. That Tyagi Malliappa , a young man dreaming of joining the army jumped

into the sea to try and save Mallavi even though he was not a good

swimmer .

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7. That the Plaintiff showing tremendous courage and determination saved

Mallavi but suffered permanent hearing loss in one ear and loss of vision

in one eye.

8. That due to the loss of eyesight in one eye he was rejected for the army.

STATEMENT OF JURISDICTION

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The counsel for the Plaintiff most humbly and respectfully submits to the

Jurisdiction of this Hon’ble District Court of Cochin at Cochin and accepts that

this Court has territorial and Pecuniary Jurisdiction to hear the present matter

and adjudge accordingly.

QUESTIONS PRESENTED

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1. Whether the principle of Vicarious liability is applicable in the

present case?

(a) Whether Mallavi Thillapalli was a servant of the fishing firm?

(b) Whether the act done by Mallavi was wrongful and in the course and

scope of employment?

2. Whether the Defendant can avail the defense of Volenti Non Fit

Injuria?

(a) Whether the plaintiff while saving Mallavi acted like a reasonable

man?

3. Whether the defendant is liable to pay damages?

SUMMARY OF PLEADINGS

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1. Whether the principle of Vicarious liability is applicable in the

present case?

(a) Whether Mallavi Thillapalli was a servant of the fishing firm?

(b) Whether the act done by Mallavi was wrongful and in the course and

scope of employment?

 As stated in the facts Mallavi Thillapalli was a fisherman employed by the

firm for the purpose of catching fish.

 Moreover he was paid wages and given adequate training and infrastructure,

hence he was not an independent contractor.

 The fisherman’s act of jumping into the water was wrongful and done

directly in the course and scope of employment.

 This act of his, was an authorized act done wrongly, hence making the

defendant vicariously liable to the plaintiff.

2. Whether the defense of Volenti Non Fit Injuria is applicable in the

present case?

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(a) Whether the plaintiff while saving Mallavi acted like a reasonable man?

 The doctrine of assumption of risk does not apply where the plaintiff has

acted under a urgent and necessary situation caused by the defendant’s

wrongful misconduct to rescue another from imminent danger of injury or

death.

 It does not matter whether the person endangered is one to whom he owes a

duty of protection or is a mere stranger to whom he owes no duty.

 The plaintiff acts as any reasonable man would under those circumstances

and in good faith under the impulse of a moral, social duty.

 Hence the injury caused to the plaintiff does not fall under the purview of

Volenti Non Fit Injuria and is a consequence of the defendant’s wrongful

act.

3. Whether the defendant is liable to pay damages?

 The injuries caused to the plaintiff were a consequence of the wrongful act

of the fisherman.

 Since the firm can be held vicariously liable for the acts of the fisherman

they are liable to pay damages to the plaintiff.

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