DSNLU -7TH NOVICE MOOT COURT COMPETITION, 2019

Roll Number: 19LLB003

BEFORE THE HON’BLE JUNIOR CIVIL JUDGE COURT OF VISAKHAPATNAM .

IN THE MATTER OF

VINAYA………………………….………………………………………………...PETITIONER1

V
JOHN…………………….………………………………………………………. RESPONDENT

THE OTHER CAR OWNER…………………………………………………………...PETITIONER 2

V.
JOHN………………………………………………………………………………. RESPONDENT

WRITTEN SUBMISSIONS FILED ON BEHALF OF RESONDENT

Counsel Appearing on Behalf of respondent

A
MEMORIAL ON BEHALF OF RESPONDENT
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TABLE OF CONTENTS

ABBREVIATIONS ............................................................................................................................II

INDEX OF AUTHORITIES........................................................................................................ III-V

STATEMENT OF JURISDICTION....................................................................................................VI

STATEMENT OF FACTS........................................................................................................VII-VIII

STATEMENT OF ISSUES…………...…………………………………………………………...IX

SUMMARY OF PLEADINGS............................................................................................................X

ARGUMENTS ADVANCED.....................................................................................................XI-XIV
1. ACTIONS OF THE RESPONDENT DOES NOT AMOUNT TO NEGLIGENCE …………….
………...…………………………………………………………...XI-XIII
2. THE RESPONDENT IS NOT LIABLE TO PAY DAMAGES TO THE CAR OWNER ……XIII-

XIV

PRAYER.......................................................................................................................................XV

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ABBREVIATIONS

S.NO ABBREVIATION FULL FORMS

S
1. Anr Another
2. Ar. Article
3. CPC Code of civil procedure
4. Govt. Government
5. Hon’ble Honorable
6. i.e. That is
7. IPC Indian Penal Code

8. IVF In Vitro Fertilization

9. J Justice
10. Mar. March
11. M.P Madhya Pradesh
12. Ors. Others
13. S. Section
14. SC Supreme Court
15. SOPs Standard operating procedures
16. UOI Union of India
17. v. Versus

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INDEX OF AUTHORITIES

CASES REFERRED
:
S.NO. NAME OF THE CASE AND CITATION PAGE NO.
1 Gajrajsingh v. State of M.P, 746 of 2012. XIV
2 Municipal Corporation Greater Bombay v. Laxman Iyer, XIV
appeal (civil) 8424 of 2003.
3 National Coal Board v. England, (1954) 1 AII ER 546. XIII
4 Olga tellis v. Bombay Municipal Corporation, 1985 SCC (3) XII
345.
5 Pitts v. Hunt, (1990) 3 AII ER 546. XIV
6 Save life foundation v. Union of India. XIII
7 S. Ganesan v. secretary to Govt. and Ors,2016. XII
8 Vidya Devi v. Madhya Pradesh State Road Transport XIV
Corporation, AIR 1975 MP 89.

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INDEX OF AUTHORITIES

STATUTES

1. Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).

BOOKS REFERRED
1. Ratanlal & Dhirajlal’s, The Indian Penal Code, (35th Edition, 2017).
2. Ratanlal & Dhirajlal’s. The Law of Torts, (25th Edition, 2010).

ONLINE RESOURCES
1. Hein Online, https://home.heinonline.org/ (last seen on September 26, 2019).
2. Manupatra, http://www.manupatrafast.com (last seen on September 26, 2019).
3. SCC Online, http://www.scconline.com/ (last seen on September 26, 2019).

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STATEMENT OF JURISDICTION

Section 9 of Code of Civil Procedure (CPC) read as follows Courts to try all civil suits unless
barred: - The Courts shall (subject to the provisions herein contained) have jurisdiction to try all
suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly
barred.
[Explanation I]. -A suit in which the right to property or to an office is contested is a suit
of a civil nature, notwithstanding that such right may depend entirely on the decision of
questions as to religious rites or ceremonies.
[Explanation II.-For the purposes of this section, it is immaterial whether or not any fees
are attached to the office referred to in Explanation I or whether or not such office is attached to
a particular place.]
The present memorandum sets forth the facts, contentions and arguments in the present
case.

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STATEMENT OF FACTS

BACK GROUND

John is a professional photographer working in a leading company which sells apparel for
expecting mothers. He has three sisters. The second sister is a doctor and has two kids. Being a
devoted brother, he frequently visits the hospital where his sister works. The hospital is one of
the leading hospitals which is far away from his place. He is a very devoted uncle. He receives a
raise for his performance at the company. He had purchased a brand-new car called ‘venue’
which was bright blue in colour and looked attractive.

He had four traffic signals on his commute to office every day. He passes by a petrol
bunk at the first signal. On his second signal, he passes by a government hospital on the opposite
side of the road. The third signal is an extremely busy signal as there is a school and college near
the same. Near the fourth signal, there is a super specialty hospital on the same side of the road.

John wanted to take his car to the office to show off to his colleagues. He crossed the first
signal and immediately in front of him, he saw an accident, where in the lady passenger of an
auto was thrown out on the road. The auto though momentarily stopped, fled as soon as crowd
started to gather. It is John who rendered help to her as a good Samaritan. By doing so he proved
how humane he is.

John parked the car to the side of the road and got out to see if the lady was injured.
When he went to see the lady, he realized that the lady was pregnant and was also his sister’s
patient. He recognized her from one of his visits. He immediately rushed to her side, picked her
up and took her in his car to take her to the hospital taking no regard to the fact that his was a
newly bought car. He had tried calling his sister but her phone was unavailable. So, it can be said
that he tried his level best to do everything that he could do. The lady was conscious at that time.

The lady was Vinaya whose case was frequently discussed at home. She had been
childless for about 7 years and finally after John’s sister performed an IVF treatment, she was

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able to conceive. Vinaya was also advised to take bed rest in the later stages of her pregnancy as
she was aged 43 and the pregnancy was going to be a tough one. Despite knowing all this, she
instead of taking bed rest in her later stage came out without precautions. John knew her from
one of his visits to her sister’s hospital.

DISPUTED PART

John in a rush of panic, immediately proceeded towards the super specialty hospital. At
the second signal, he realized that Vinaya had lost consciousness. However, he stopped at the
signal as the signal was red. He rushed through the third signal as the light was yellow. Another
car with the same intention of skipping the red light, rushed through and jammed into the rear of
John’s car. He recovered soon and took the lady to the hospital. At the hospital, it was
pronounced that Vinaya had given birth to a still born child.

SUIT

After coming home, he called his sister and narrated the incident to her. Despite not being
present there, as a sister, she merely comforted her brother saying that he had done all he could
do. She also stated that that she would inform him if Vinaya came back to her for further
treatment. After a few days, he receives two notices that two suits have been filed against him,
one by the lady and the other by the other car owner for payment of damages.

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STATEMENT OF ISSUES

ISSUE - I

WHETHER THE ACTION OF THE RESPONDENT AMOUNTS TO NEGLIGENCE?

ISSUE - II

WHETHER THE RESPONDENT IS LIABLE TO PAY DAMAGES TO THE CAR OWNER?

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SUMMARY OF PLEADINGS

1. ACTIONS OF THE RESPONDENT DOES NOT AMOUNT TO NEGLIGENCE IN NOT TAKING

VINAYA TO THE GOVERNMENT HOSPITAL

The counsel for respondent humbly argues before this Hon’ble court that the actions of
respondent does not amount to ‘Negligence’ in not taking Vinaya to the govt. hospital because he
acted in good faith while proceeding towards the super speciality hospital. Under necessity to
protect the pregnant lady he did that act when nobody else in the crowd came forward to render
help. As a good Samaritan, he has to be protected.

2. THE RESPONDENT IS NOT LIABLE TO PAY DAMAGES TO THE CAR OWNER

The counsel for respondent humbly argues that there is no liability to pay damages to the car
owner as the respondent has a just and reasonable cause to skip the red light (i.e.to save the
priceless life of Vinaya). The petitioner himself is a wrongdoer in this case as he broke the traffic
rules without just cause.

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ARGUMENTS ADVANCED

ISSUE - I
THAT THE ACTIONS OF THE RESPONDENT DOES NOT AMOUNT TO NEGLIGENCE:
1.1 The counsel for respondent humbly argues before this hon’ble court that the actions of John
do not amount to negligence in not taking Vinaya to the nearby government hospital. The term
‘Negligence’ is defined as, “ the breach of a duty caused by the omission to do something which
a reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and reasonable man would do”. 1
According to Winfield, “negligence as a tort is the breach of a legal duty to take care which
results in damage, undesired by the defendant to the plaintiff”.2

1.2 The counsel submits that there are three elements to constitute tort of negligence. To put it in
a nutshell the needed elements are:

A. Duty to care for someone

B. Breach of that particular duty

C. Damage resulting from such breach of duty.

1.3 In the present case the three conditions were not fulfilled to consider it as a tort of
negligence. The counsel will substantiate elements with facts and explains the current case as to
how the elements were not fulfilled. John, despite having no legal duty to render help to the
pregnant lady, never turned blind eye to the helpless position of her. Instead unlike all other
members in the crowd he took upon himself the moral obligation to rescue her. After taking upon
himself the onus of responsibility onto his shoulders, he took due care to not let the situation out
of hands. This is evident when he made efforts to contact her second sister, who is a doctor. It is
an undeniable fact that he did everything in good faith with no intention to cause harm to her.
And the third element of negligence i.e. damage to the petitioner resulting from breach of duty
by the respondent is also not fulfilled. The birth of a still born child to Vinaya is never because of
the breach of duty of respondent.

1
Ratanlal and dhirajlal, the law of torts 474 (26 ed. 2010).
2
Ratanlal and dhirajlal, Supra, 1.

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1.4 The respondent in the given case was well aware of the toughness of the delivery of Vinaya.
It is evident in statement “John knew that Vinaya’s case was a tough one”. In his rush of panic,
John had nothing in his mind accept to save Vinaya from the risk of death. So, with that in mind,
he proceeded towards the multispecialty hospital involuntarily not in a typical sense of the
definition. But the term “involuntary” as used in Olga Tellis v. Bombay Municipal
Corporation3is an act compelled by inevitable circumstances. In the case of S.Ganesan v.
secretary to govt. and ors.4 the govt. hospital negligently administered nitrous oxide instead of
oxygen when she was admitted for vasectomy.

1.5 S.304A. of Indian Penal Code reads as: whoever causes the death of any person by doing any
ash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with both.5

Essential elements of S.304A are the following

A. Death of a person

B. Death was caused by accused during any rash or negligent act

C. Act does not amount to culpable homicide.

The essential elements in this case are not fulfilled to make the defendant liable for the birth of
still born child. The death happened not because of the defendant. As per STRAIGHT J the
criminality lies in running the risk of doing such an act with recklessness or indifference as to the
consequences.6 There is no reckless or indifferent act of defendant in the given case. In fact, the
defendant was concerned about the lives of mother and child.

1.6 GOOD SAMARITAN LAW: In its guidelines to the hospitals and police authorities for the
protection of good Samaritans, the Supreme Court of India on 30 Mar. 2016 held that the
bystander or good Samaritan shall not be liable for any civil or criminal liability. These
guidelines were laid down in Save Life Foundation V. Union of India. 7 It is held that Right to life
under Ar. 21 includes right to safety of persons travelling on road and immediate medical
3
Olga tellis v. Bombay municipal corporation, 1985 SCC (3) 545.
4
Ganesan v. secretary to Govt. and Ors, (2016).
5
Rathanlal and dhirajlal, the Indian penal code 672 (35 ed. 2010).
6
Rathanlal and dhirajlal, the Indian penal code 674 (35 ed. 2010).
7
Save life foundation and Anr. V. Union of India and Anr, W.P. (civil) No. 235 of 2012.

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assistance as a necessary corollary is required to be provided and also adequate legal protection
and prevention from harassment to good Samaritans. 8 To protect the road accident victims in
“Golden Hour “the apex court by invoking Ar.141 and Ar.142 of the constitution made
guidelines and standard operating procedures(SOPs) binding throughout the Indian territory .
Following this, the respondent being a good Samaritan shall not be made liable in this
case brought about by the petitioner, Vinaya claiming for damages.

ISSUE - II
THAT THE RESPONDENT IS NOT LIABLE TO PAY DAMAGES TO THE CAR
OWNER:

2.1 The counsel humbly submits that the person must approach court of law with clean hands as
no legal action arises out of a wrongful act. Here it is not followed where the petitioner himself
being the wrongdoer approached the court. A petitioner is not disabled from recovering by
reason of being himself a wrongdoer, unless some unlawful act or conduct on his own part is
connected with the harm suffered by him as part of the same transaction. 9 The counsel
substantiates the facts with the case. The unlawful act was committed by breaking the traffic
rules without just cause which is connected with the harm. So, the petitioner is disentitled from
claiming for compensation.

2.2 In National Coal Board v. England,10 Lord Asquith gave illustrations as to when a defense of
ex turpi causa may succeed or may not succeed. He said: “Possibly a party to an illegal prize
fight who is injured in the conflict cannot sue for assault. If two burglars, A and B, agree to open
a safe by means of explosives, and A so negligently handles the explosive charge as to injure B,
B might find some difficulty in maintaining an action for negligence against A. But if A and B
are proceeding to the premises which they intend burglarously to enter and before they enter
them B picks A’s pocket and steals his watch, I cannot prevail on myself to believe that A could
not sue in tort. The theft is totally unconnected with burglary.” 11 In Pitts v. Hunt,12 the claim for
compensation was negated by the court on account of he being the wrongdoer.
8
Save life foundation and Anr. V. Union of India and Anr, W.P. (civil) No. 235 of 2012.
9
Rathanlal and dhirajlal, the law of torts105 (26 ed. 2010).
10
National coal board v. England, (1954) 1 AII ER 546.
11
Rathanlal and dhirajlal, supra, 9.
12
Pitts v. hunt, (1990) 3 AII ER 546.

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2.3 CONTRIBUTORY NEGLIGENCE: The Supreme Court held in the case of Municipal
Corporation Greater Bombay v. Laxman Iyer13 that “it is now well settled that in the case of
contributory negligence, courts have the power to apportion the loss between the parties as seems
just and equitable.” Vidya Devi v. Madhya Pradesh State Road Transportation Corporation 14 is
another important judgement in the matter of contributory negligence. The matter of facts in this
case are that there was an accident in Jabalpur at the crossing of two roads between a bus and
motorcycle. As a result of the collision the motorcyclist sustained severe skull injuries and died
thereafter. In a suit filed by his representatives, the claims tribunal held that the claimants failed
to prove negligence on the part of the bus driver and the facts and circumstances established that
the deceased himself was negligent.

2.4 DOCTRINE OF LAST OPPORTUNITY: In the doctrine of last opportunity the person who
has the last opportunity to prevent a harm will be held more liable. The case law of Gajrajsingh
v. State Of M.P15 serves a good purpose in understanding this doctrine.

13
Rathanlal and dhirajlal, the law of torts 589 (26 ed. 2010).
14
Vidya devi v. Madhya Pradesh state road transport corporation, AIR 1975 MP 89.
15
Gajraj singh v. the state of M.P, 746 of 2012.

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PRAYER

It is; therefore, most humbly prayed before this Hon’ble Junior Civil Judge Court to kindly allow
the suit and may be pleased to adjudge and declare that:

1. The act of respondent does not amount to negligence.

2. The respondent is not liable to pay the damages.

And/or pass such other order in light of justice, equity and good Conscience which this Hon’ble
court may feel fit and proper in the circumstances of the case.

And for this act of kindness, the respondent duty bound shall forever pray.

S/d-
Counsels for respondent.

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