ASSIGNMENT FOR INTERVIEW ROUND

QUESTION NO. 1: RESEARCH

Research on the proposition “Restitution ad Integrum” which basically means
restoration to the original condition. Find out three Supreme Court Judgments
with their relevant paragraphs which elucidate on the above-mentioned
proposition. Please refer to SCC or MANUPATRA.

restitutio in integrum.    The said principle of granting compensation.

Case 1: V. Krishnakumar vs State Of Tamil Nadu &Ors (2015)

The Hon’ble Supreme while holding the surgeon negligent of operating a 15-year-old
boy with only 35000 platelets fixed the vicarious liability upon the concerned hospital
and awarded compensation to the family by relying upon precedents of the Hon’ble
court pertaining to the calculation of compensation.

The Hon’ble court in V. Krishnakumar v. State of Tamil Nadu and Others 6

(2015) 9 SCC 388 had reiterated and upheld that the principle of awarding
compensation that can be safely relied on is  restitutio in integrum.  The said
principle provides that a person entitled to damages should, as nearly as
possible, get that sum of money which would put him in the same position as
he would have been if he had not sustained the wrong.

The case dates back to August 1996 when the baby was born premature at 29
weeks at the Women and Child Hospital, Egmore, in Chennai.
According to Tamil Nadu State counsel, senior advocate Subramonium Prasad and
advocate B. Balaji, who argued the case in the Supreme Court, there was no lack of
medical care and the baby spent 23 days in the incubator due to severe medical
complications at the time of delivery.
But the family, represented by advocate Nikhil Nayyar, alleged that the doctors at the
government hospital, during the time of discharge, did not conduct mandatory
screening of pre-term infants for the condition of retinopathy of prematurity (ROP)
and also discharged the baby with no advice whatsoever to the parents about the
condition and the need for a review.
But the State argued that ROP was a disorder affecting only 17 percent pre-term
infants. It contended that the doctors had indeed advised the family at the time of
discharge to come back for a medical review.
In 1998, two years after the baby's birth, the family moved the National Consumer
Disputes Redressal Commission complaining of the medical negligence and seeking
a compensation of Rs. 1 crore for their mental agony and the child's permanent loss
of sight.
The Commission in May 2009 ordered a compensation of Rs. 5 lakhs, following
which, both the family - for enhanced compensation - and the State appealed to
the Supreme Court the same year.
 An application of this principle is that the aggrieved person should get that sum of
money, which would put him in the same position if he had not sustained the wrong.
It must necessarily result in compensating the aggrieved person for the financial loss
suffered due to the event, the pain and suffering undergone and the liability that
he/she would have to incur due to the disability caused by the event.

Case 2:  Nand Kishore Prasad v. Dr. Mohib Hamidi & Others (2019)

Facts in Brief

The son of the Appellant (patient) was suffering from abdominal pain, fever and
haemorrhage in both eyes. He went to a doctor on 08.11.1995 who later on referred
the patient to a hospital. A surgery was conducted upon the son of the Appellant on
11.11.1995 in the Hospital when his platelet count was reportedly 35,000 per cubic
millimetre. However, despite the surgery, the patient was bleeding and in spite of
packing of leakages, the relatives of the patient discharged him on 13.11.1995 and
took him to another Hospital wherein he died on 16.11.1995.

Before the Courts below, an Affidavit of another Doctor was produced in which it was
opined that to operate the patient with excessive low platelet counts was the greatest
blunder and a clear case of extreme negligence of doctors.

This fact was acknowledged by the State Consumer Commission and it found the
Hospital as also the Operating Surgeon to be guilty of negligence and appropriate
compensation was awarded against the Hospital as well as the Operating Surgeon.
However, the amount of compensation awarded against the Operating Surgeon was
set aside by the National Consumer Disputes Redressal Commission (NCDRC)
though it held that the Operating Surgeon was also negligent.

Arguments Advanced
On the one hand, it was argued by the Appellant that performing surgery on his son
was sheer negligence as his platelet count was extremely low whereas on the other
hand, the Respondents argued that due care, diagnosis and tests were performed
on the patient before taking him to surgery. It was further argued that the patient was
already in a difficult and critical medical condition and the Surgeon was trying to save
his life by removing the roundworms from the abdomen and transfusing blood to
facilitate recovery. Thus, the decision of the Surgeon was bona fide.

Held

The Supreme Court held that there is nothing on record to suggest that performing a
surgery was an absolute necessity to cure the patient. The Supreme Court decided
to rely upon the test of reasonableness as was held in Arun Kumar Manglik v.
Chirayu Medicine Health and Medicare Private Ltd., 2019 SCC Online SC 197,
wherein it was observed as under: -

“53. In the practice of medicine, there could be varying approaches to treatment.

There can be a genuine difference of opinion. However, while adopting a course of
treatment, the medical professional must ensure that it is not unreasonable. The
threshold to prove unreasonableness is set with due regard to the risks associated
with medical treatment and the conditions under which medical professionals’
function. This is to avoid a situation where doctors resort to ‘defensive medicine’ to
avoid claims of negligence, often to the detriment of the patient. Hence, in a specific
case where unreasonableness in professional conduct has been proven with regard
to the circumstances of that case, a professional cannot escape liability for medical
evidence merely by relying on a body of professional opinion.”

Thus, the Court found out the decision of the Operating Surgeon to conduct surgery
to be an unreasonable decision amounting to medical negligence. Further, with
respect to the quantum of compensation, the Court relied on the principle
of restitutio in integrum according to which a person entitled to damages should,
as nearly as possible, get that sum of money which would put him in the same
position as he would been if he had not sustained the wrong [See Livingstone v.
Rawyards Coal Co., (1880) LR 5 AC (HL)].

The Supreme Court held that the NCDRC should not have interfered with the
amount of compensation and it could have apportioned the amount of compensation
payable by the Operating Surgeon to the Hospital as the Hospital had vicarious
liability as well due the fact that the death of the son of the Appellant occurred during
the course of employment of Operating Surgeon with the said Hospital.
Case 3: Maharaja Agrasen Hospital v. Master Rishabh Sharma
In the case of Maharaja Agrasen Hospital v. Master Rishabh Sharma, any acts of negligence
committed by the doctors who are empanelled to provide medical care and are affiliated to
hospitals, the hospitals shall be held vicariously liable, observed the Supreme Court of India.
Justice Uday Umesh Lalit along with Justice Indu Malhotra as a bench upheld the NCDRC
order in order to hold a hospital vicariously liable for the negligent medical acts of doctors
who allegedly failed to perform the compulsory check-up of Retinopathy during a pre-term of
a premature baby that leads to total blindness.
The court referred the Bolam Test i.e., which was established in the case of Arun Kumar
Manglik v. Chirayu Health and Medicare Ltd. any doctors or medical professionals failing to
prove that they have taken reasonable and due care of the pre-mature baby, and other
judgments on medical negligence and observed the mandate screening and checking up for
ROP. The court stated,
“A medical professional should be alert to the hazards and risks in any professional task he
undertakes to the extent that other ordinarily competent members of the profession would be
alert. He must bring to any task he undertakes reasonable skill that other ordinarily
competent members of his profession would bring”
A compensation worth Rs. 76,00,000/- was awarded to the boy and the mother, the bench
also issued directions on utilization of the amount and further stated that,
“It is common experience that when a patient goes to a hospital, he/she goes there on
account of reputation of the hospital, and with the hope that due and proper care will be
taken by the hospital authorities. If the hospital fails to discharge their duties through
doctors, being employed on job basis or employed on job basis or employed on contract
basis, it is the hospital which has to justify the acts of commission or omission on behalf of
their doctors”
The court further stated the following acts shall comprise the act of medical
negligence:
1.A legal duty to exercise due care on the part of the medical professional;
2.Failure to inform the patient of the risks involved;
3.The patient suffers damage as a consequence of the undisclosed risk by the
medical professional;
4.If the risk had been disclosed, the patient would have avoided the injury;
5.Breach of the said duty would give rise to an actionable claim of negligence.
Damage, is an essential ingredient of tort and when the damage occurs the cause of action
of negligence shall come into the picture. The burden to proof in the complaint of medical
negligence is on the complainant to prove that there was a breach of duty, injury and
causation. The injury should be sufficiently proximate to the medical practioner’s breach of
duty. If the evidence is missing to the contrary adduced by the opposite party, an inference
of causation will be drawn even if the positive or scientific proof is lacking.
The neglect in exercising a reasonable degree of skill and knowledge to the patient, to whom
he owes a duty of care, which has resulted in injury to such person is actionable medical
negligence. In order to adjudge whether medical professional is to be charged as negligent
or not it is required to see if while performing the duty, he is acting as an ordinary prudent
and competent person exercising his ordinary skill in the profession. The law does not
expect extremes of exercising his care, it requires neither very highest not a very low degree
of care and competence to adjudge whether the medical profession is negligent or not.

QUESTION NO. 2: GROUND

According to me, we need to file a petition to absolve Tyrion from paying

maintenance and additionally, getting the proceedings quashed.
So, I think quashing petition would be appropriate under s. 482 CRPC
and in the interim seek stay on direction to pay Maintenance.
Draft of petition
 IN THE HON’BLE HIGH COURT OF ____________
___________________
CRIMINAL M.C. No. _________ OF 201….
IN THE MATTER OF:
SH. ______________ & ORS. .PETITIONERS
VERSUS
THE STATE ..RESPONDENTS

PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973

PRAYING THIS HON’BLE COURT TO PASS NECESSARY ORDERS AND DIRECTION
THEREBY QUASHING AND CANCELLING THE FIR NO.74/2010, UNDER SECTION
498-A/406/ (Add necessary section) I.P.C. P.S. _____________
MEMO OF PARTIES
1. _________________
________________________
_________________________________
_______________________________

________________________________ ..PETITIO
NERS
VERSUS
1. THE STATE
2. ___________________
______________________________
________________________________________ ...RESP
ONDENT
_________________. PETITIONERS
DATED THROUGH
COUNSE

List of Dates and Events

Date Particulars of events

………… The marriage between the petitioner No. 1 and

respondent No. 2 was solemnized according to Hindu
rites and ceremonies at___________________ on
…………. The marriage between the parties was duly
consummated and out of this wedlock no issue was
born.

…………….. That after the marriage, the petitioner No. 1 and

respondent No. 2 lived together as husband and wife
in the matrimonial home.

………….. A complaint filed in CAW Cell against the petitioners

by the respondent No. 2 on …………...
 ………….. In pursuant to the above complaint, a FIR No.74/2020,
under section 498-A/406/34(Add necessary section)
I.P.C. P.S.____________________ was registered
against the petitioner No. 1 and his family members

…………. That due to the intervention of the Mediation

Centre, / or Relatives, the matter between both the
petitioners have been amicably settled vide order
dated …………...

…………. Hence this petition

IN THE HON’BLE HIGH COURT OF ____________

___________________
CRIMINAL M.C. No. _________ OF 201….
IN THE MATTER OF:
SH. ______________ & ORS. ..PETITIONERS
VERSUS
THE STATE ..RESPONDENTS

PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING
THIS HON’BLE COURT TO PASS NECESSARY ORDERS AND DIRECTION THEREBY QUASHING
AND CANCELLING THE FIR NO.74/2010, UNDER SECTION 498-A/406/ (Add necessary
section) I.P.C. P.S. _____________
AND ALSO PRAYING
THIS HON’BLE COURT TO PASS ANY OTHER ORDER OR DIRECTION AS THIS HON’BLE
COURT MAY DEEM FIT AND PROPER IN THE FACTS AND CIRCUMSTANCES OF THE CASE.
TO,
THE HON’BLE CHIEF JUSTICE
AND HIS HON’BLE COMPANION
JUSTICES OF THE HIGH COURT OF
_____________________________.

THE HUMBLE PETITION OF THE

PETITIONERS ABOVE NAMED.
MOST RESPECTFULLY SHOWETH:

1. That the marriage between the petitioner No. 1 and respondent No. 2 was
solemnized on ………………………… at____________________ according to
Hindu rites and ceremonies. The marriage was duly consummated and out
of this wedlock no issue was born.

2. That the petitioner No. 1 is the husband, petitioner No. 2 is the mother-in-
law, Petitioner No. 3 is the sister-in-law and petitioner No. 4 is brother-in-
law of the respondent No. 2/complainant.

3. That there is irretrievable break down of the marriage due to incompatible

behaviour, conduct and temperament of the parties. Accordingly, the
parties to the petition have been living separately since …………. and have
not been able to live together or cohabited since then.

4. That a complaint filed in CAW Cell against the petitioners by the

respondent No. 2 on …………… and the said complaint converted into FIR
No……………., under section 498- A/406/34/ (Add necessary section) I.P.C.
P.S. True photocopy of the FIR and its true typed copy are annexed
herewith as Annexure P-1 (Colly).
5. That due to the intervention of the Mediation Centre/Relatives, both the
petitioner No. 1 and Respondent No. 2 have mutually agreed before the
Mediation Cell……………………...Court that their marriage may be dissolved
and that there shall be no claim whatsoever made out against any of the
parties or against each other and they shall be bound by the conditions
settled amongst them before the Mediation Cell, Court.

6. That both the parties have agreed upon a settlement that the Petitioner
No. 1 will pay a total sum of Rs................... /- on account of full and final
settlement of all past present and future claims of all kinds in lieu of dowry
articles, Stridhan, maintenance present past and future and also includes
all claims of permanent alimony.

7. That the said amount will be divided in instalments of Rs……………. /- at the

time of First motion to the petitioner No. 1, second installment of Rs ......./-
was paid at the time of second motion and last and final installment of
Rs……………. /- being paid at the time of quashing of the FIR No. …………….
u/s 498-A/406/34/ (Add necessary section) IPC, P.S.--------------------

8. That the respondents No.2 has no more grievance against the petitioner.
The respondent No.2 is not willing to support the imputations made in the
said FIR against the petitioners because the dispute in question has already
been settled/compromised between the parties. In these circumstances,
there are no chances of successful prosecution and conviction of the
petitioners. Therefore, no fruitful purpose will be served while allowing the
criminal proceedings in question to continue. The very purpose of justice
will be frustrated by allowing the criminal proceeding in question to
continue.
9. That the compromise between the parties has been arrived with their free
consent, without any threat or pressure or coercion or undue influence.

10. That the respondents no.2 has no objection if the FIR in question is
quashed qua the petitioners.

11. That the Petitioner crave leave of the Hon'ble Court to urge such further
additional ground (s), at the time of hearing of this petition, which have not
been specifically taken up in this petition.

12. That the Petitioners have not alternative and efficacious remedy except to
approach this Hon'ble Court for seeking relief claimed in the petition.

13. That the Petitioners have not filed any other similar petition seeking
quashing of complaint case in question either before this Hon'ble Court or
before the Hon'ble Supreme Court of India.

14.That the Annexures annexed with this petition are true copies of their
respective originals.

PRAYER
It is, therefore, most humbly and respectfully prayed that this Hon'ble
Court may kindly be pleased to quash the FIR No……………., under section
498-A/406/34/ (Add necessary section) I.P.C. P.S. ____________, in the
interest of justice.

HIMANI VERMA
GGSIP UNIVERSITY, DWARKA
EMAIL ID: HIMANI.VERMA2001@GMAIL.COM
CONTACT: 91+88828-74714