Moot Court Pition From 05

MOOT COURT CASE SUBMISSION-TY LLB (SEM-ST"), 2023 - 2024
BEFORE THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION CRIMINAL
APPEAL NO. -----------------------------------
IN THE MATTER OF
XYZ
XZY
XYX-----------------------------------------Appellant
(Orig. Accused)
(Presently accused at Yerwada Central Jail, Pune)

V/S
Respondent State of Maharashtra---------------------------------Respondent
(Orig.Complainant)
(Through Pune Police Station, Pune)
For OFFENCE CHARGES UNDER
Section 376(A), 397,302.404;120(B) of THE INDIAN PENAL CODE
UPON SUBMISSION TO THE HON'BLE HIGH COURT JUDGE
MEMORANDUM ON BEHALF OF THE DEFENCE
SUBMITTED TO: PROF. ADV. Priyanka mahadik
ROLL NO-,
DIV-S
M.S.LAW COLLEGE, MUMBRA COLLEGE:
Academic Year-2022-2023
Moot Court Submission for the Respondent-Submitted by Priyanka mahadik -TYLLB (3yr Course) 2022-23
TABLE OF CONTENT
LIST OF ABBREVIATIONS USED
INDEX OF AUTHORITIES STATEMENT OF JURISDICTION
STATEMENT OF FACTS STATEMENT OF ISSUES
STATEMENT OF ARGUMENTS
Whether the appeal against conviction is maintainable?
Whether the accused conspired to commit the said crime and in Pursuance of this
Conspiracy they carried out the criminal acts as charged by the prosecution?
Whether the prosecution have proved beyond a reasonable doubt the common intention of
the accused by brining on record that the said acts were committed by several persons in
furtherance of their common intention?
ARGUMENTS ADVANCED
PRAYER
INDEX OF AUTHORITIES
Sr No
Treaties, books ,Reports and Digests
Journals Referred
Database Referred
STATEMENT OF JURISDICTION
The Petitioner has approached this Hon'ble High Court of Madras under original jurisdiction of
High court guaranteed under Article 226 of Indian Constitution.
The Hon'ble High Court has the jurisdiction to hear the matter under Article 226 of Constitution of
India, 1949.
The Article 226 of Constitution of India reads as hereunder:
Article 226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority, including
in appropriate cases, any Government, within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of
them, for the enforcement of any of the rights conferred by Part III and for any other purpose
STATEMENT OF FACTS
Ramore Nagar Government hospital in association with Nehthra eye care, charity hospital along
with BSC NGO Organized the free eye camp to extend facilities of expert ophthalmic surgical
services to the residents of Naina village. Lower and minor risk surgeries were carried out on
number of cataract patients. Unfortunately, the operated eyes of the patients were irreversibly
damaged due to post-operative infection of the "intra ocular cavities of the eyes caused by the
common contamination source, "normal saline" used in the eyes at the time of surgery resulting in
"E-Coli" infection of the intra ocular cavity caused to permanent loss of eye sight of the patients.
Government of Ramore nagar sanctioned permission for conducting of eye camp without ensuring
strict compliance of with the conditions prescribed in the guidelines prescribed by the government
to supervise the satisfactory and safe functioning of the camp were not effectively discharged
STATEMENT OF ISSUES
ISSUE1:
WHETHER THE CASE IS MAINTANABLE?
ISSUE 2:
WHETHER THE GOVERNENT OF RAMORE NAGAR HELD LIABLE FOR DEFICIENCY
OF SERVICE?
ISSUE 3:
WHETHER NEHTHRA HOSPITAL AND BSC NGO IS LIABLE FOR DEFICIENCY OF
SERVICE
ISSUE 4:
WHETHER FREE SERVIC RENDERED BY ALL THREE ORGANISATIONS COMES
UNDER THE PERVIEW OF SERVICE ISSUE 5 WHETHER THE PATIENTS ARE
ENTITLED TO COMPENSATION?
List of witnesses Examined
STATEMENT OF ARGUMENTS
ISSUE1:
ISSUE 2
WHETHER THE GOVERNENT OF RAMORE NAGAR HELD LIABLE FOR DEFICIENCY OF SERVICE?
ISSUE 3
WHETHER NEHTHRA HOSPITAL AND BSC NGO IS LIABLE FOR DEFICIENCY OF SERVICE
ISSUE 4
WHETHER FREE SERVIC RENDERED BY ALL THREE ORGANISATIONS COMES UNDER THE
PERVIEW OF SERVICE
ISSUE 5
WHETHER THE PATIENTS ARE ENTITLED TO COMPENSATION?
ARGUMENTS ADVANCED
ISSUE1:
It is humbly submitted before this Hon'ble Court that the Petitioner has right to file
Writ under Article 226 of Constitution of India before this Hon'ble High Court,
Article 226, which reads as hereunder:
Article 226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority, including
in appropriate cases, any Government, within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred by Part III and for any other purpose
It is humbly submitted before this Hon'ble Court that The Supreme Court in various cases has
viewed that the right to life as enshrined in Article 21 of the Constitution of India includes the right
to health and medical treatment.
right to life would be meaningless unless medical care is assured to a sick person.'
Wherever there is infringement of right to life and personal liberty the person aggrieved or any
public, spiritual individual can move the Supreme Court or High courts by appropriate proceedings
for the enforcements of rights so infringed by the state action. The courts are empowered to grant
compensatory relief if the state fails to preserve the life or liberty of the citizen.
The courts have the obligation to protect the rights of citizens, since the courts and laws are made
for the people. Therefore, they are expected to respond to their aspirations.
Therefore one can move the High Court by appropriate proceedings for the enforcement of the
rights conferred and guaranteed under the constitution and other laws.
The right to health and access to medical treatment has been included in the plethora of rights
brought under the ambit of Article 21.5 The philosophy of the right to life enshrined in Article 21
enlarges its scope to encompass human personality with invigorated health which is a wealth to a
person to earn his livelihood, to sustain the dignity of person and to live with dignity and equality."
Lack of health denudes a person of his livelihood.
CONSTITUTIONAL OBLIGATIONS TO PROVIDE MEDICAL SERVICES:
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1 Sharma MK, "right to Health and Medical Care as a Fundamental Right" AIR 2005, p. 255.
2 In Rudul Shah V State of Bihar (AIR 1983 SC 1086) in which the Supreme Court for the first time set up an important landmark
in Indian Human Rights Jurisprudence by articulating compensatory relief for infraction of Article 21. Since then the court started
awarding monetary compensation as and when the conscience of the court was shocked.
3 D.K. Basu V State of Best Bengal AIR SC 610 at 625.
4 Article 226 of the Constitution.
5 AIR 1997 Journal Section, 103 at p. 103, 104).
6 Consumer Education and Research Centre Vs. Union of India, AIR 1995 SC 922: (1995) 1 JT 636
7 bharath kumar k. Policha Vs. State of kerala, AIR 1997ker , (1997)2ker LT 287
The Petitioner humbly quotes the following cases to show the norms lay down by the Supreme
Court in regulating health service and enforcement of such right.
The Supreme Court in notable case of Paschima Banga Khet Mazdoor Samity & Others Vs. State
of West Bengal & Another, while widening the scope of Art. 21 and governments responsibility to
provide medical aid to every person in the country held that article 21 imposes an obligation on the
state to safeguard the right to life of every person. Preservation of human life is thus of paramount
importance. The Government hospitals run by the state are duty bound to extend medical assistance
for preserving human life. Failure on the part of a government hospital to provide timely medical
treatment to a person in need of such treatment, results in violates of his right to life guaranteed
under Art. 21. The petitioner should, therefore, be suitably compensated for the breach of his right
guaranteed under Article 21 of the Constitution. After considering facts and circumstances of the
case compensation of Rs. 25,000 was awarded.
Emphasizing the importance of Directive Principles of State Policy in Akhila Bharatiya Soshit
Karamcharai Sangh Vs. Union of India, the Supreme Court pointed out that fundamental rights
are intended to foster the ideal of a political democracy and to prevent the establishment of
authoritarian rule, but they are of no value unless they can be enforced by resort to courts. The
directive principles cannot, in the very nature of things be enforced in a court of law, but it does not
mean that directive principles are less important than fundamental rights or that they are not binding
on various organs of the state.
In the case of Vincent Pani Kurlnagara vs. Union of India, it was contended that matter of public
health is incorporated only in Directive principles and they are not enforceable before the court of
law, the Supreme Court observed:
---------------------------------------------------------------------------------------------------------------
8 1996 4 SCC 37.
9 1981 1 SCC 246..
10 AIR 1987 SC 990.
"maintenance and improvement of public health have to rank high as these are indispensable to the
very existence of the community
and on the betterment of these depends the building of the society which the constitution makers
envisaged. Attending to public
health in our opinion, therefore, is of high priority - perhaps the ones at the top. the right to health
and medical care is a part of right to life".
"1 Therefore it is humbly pointed out before this Hon'ble Court, from judicial observation of
Vincent Panikurlangara to Pashima Banga Khet Mazdoor Samity gives a clear picture that access to
medical treatment is an integral part of article 21 of the constitution. The approach in Paschim
Banga Khet Mazdoor Samity is more dynamic as the state governments are directed to provide
medical facilities along with sophisticated medical treatment. Of course, the government may face
financial constraints in implementing all these directions but that should not be an excuse for the
state to go away from the basic responsibility. In the welfare state it is the primary duty of the state
to provide cheap medicine and drugs, better equipped hospitals with modernized medical
technological facilities and these things have to be done the state in accordance with the
international declarations, mandate of the constitution and the judicial observations.
Hence, In the light of the totality of the facts of case, the fundamental right of the petitioner is
dishonored and therefore the petitioner is guaranteed with the right to file Writ under Article 226 of
Constitution of India before this Hon'ble Court..
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11 AIR 2005 Journal Section p. 256.
ISSUE 2
WHETHER THE GOVERNMENT OF RAMORE NAGAR HELD LIABLE FOR

DEFICIENCY OF SERVICE?
National programme for control of blinds, revised norms on service delivery in eye camps,
November 2012., Norm no.5 says about, Responsibilities of the eye surgeon - in - charge of the
camps, that (5.1) it is the professional responsibility of the surgeon and his team to plan implement
and supervise the technical component of the eye camp organization. The eye surgeon should be
given task at atleast 15 day before intended date of camp. (5.2) The technique, drugs and
instruments routinely used by the surgeons at the base hospital should be used in the camp. (Drugs
already used and clinically tested by him),
According the guidelines the eye surgeon must take care of a drug that is to be used in the camp. in
this inatant case, the normal saline, a routinely used intraocular irrigationsolution was used on
cataract patient, which caused infection of "E- Coli: on all operated patients. This may be an
negligence on part of the Hospital, also the governments fails to ensure that the guidelines were
properly adhered in the eye camp.
T.12011 | L4/20 1s- FJ CD/BA
Government of India
Ministry of Health & Family Welfare Department of Health & Family Welfare
NCDI BC Section Minutes of meeting of experts to reassess existing guidelines for Eye Surgery under National programme
on Control of blindness (NFCB).
iv) Sungical supplies 12
1. Irrigating Solutions: .
Both Ringer lactate solution (RI) or balanced salt solution (BSS)) can be used for the cataract surgery/ as
intraocular irrigating solution. To use only those which are packaged in flexible bag or in bottle container.
Should not use solutions supplied in rigid plastic. non transparent containers
If glass bottles are used, the bottle should be checked and autociaved on the previous day.Before autoclaving,
the bottle should be inspected lor the quantif, any crack and lor any suspended parlicles. If the quantity is less
or a crack or any suspended parLicles are seen it should be discarded. The bottle should be autociaved on the
day before surgery. The outer surface of the bottie should be cleaned before autoclarans. The parameters for
autoclaving boities is i2i0 C tempelartr.. .
Any leftover solution should be discarded at the end of the day after the surgeries. Should not be stored nor
reused on the following day
GOVERNMENT HELD VICARIOUSLY LIABLE
In State of Rajasthan Vs. Vidyavati', the Supreme Court observed that the State is vicariously liable for the
tortious acts of its servants or agents which are not committed in the exercise of its sovereign functions. The
issue is, whether providing or undertaking medical care through the primary health centre constitutes
sovereign function of the state. The Supreme Court in Achutrao Haribhau Khodwa Vs. State of Maharashtra¹³
While overruling the judgment of the High Court makes it clear that the high court has erred in arriving at
conclusion that maintaining and running a hospital was an exercise of the state's sovereign function.
Disapproving this line of thought, the Supreme Court pointed out that running a hospital is a welfare activity
undertaken by the government, but is not exclusive function or activity of the government so as to be
classified as one which could be regarded as being sovereign power of the state¹. The state would be
vicariously liable for the damages payable on
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12 AIR 1962 SC 933.
13 1996) 2 SCC 634; (1996) 4 CTJ 950 (SC)
14 the court referred its earlier decision in Kasturilal's case (AIR 1965 SC 1039) wherein it was noticed that in pursuit of the welfare
ideal, the government may enter into many commercial and other activities which have no relation to the traditional concept of
government activity in exercise of its sovereign function, similarly, running of a hospital, where the members of the general public
can come for treatment, cannot be regarded as being an activity having a sovereign character).
accounts of negligence of its doctors and other employees. Applying this principle, the
Supreme Court held the state of Haryana liable for negligence of the doctor in a
Government Hospital in performance of sterilization operation resulting in birth of an
unwanted child
. The principle of law which emerges is the Union of India and States are liable for
damages occasioned by the negligence of employees serving / employed in the services
of the Government Hospital as if law would render an ordinary employer liable. The
government is required to be impleaded as a party to the suit instituted against a Medical
Officer of Government Hospital for damages in respect of neglect act alleged to have been
done by him in his official capacity . Like a private employer, the state is liable to pay
compensation for negligence of its medical practitioners who have committed the wrong in
the course of their employment as a public servant.
The Government of Ramore nagar sanctioned permission for conducting of eye camp
without ensuring strict compliance of with the conditions prescribed in the guidelines
prescribed by the government to supervise the satisfactory and safe functioning of the
camp were not effectively discharged.
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15 State of Haryana vs. Santra 2000 CTJ 481 (SC); 1 (2000) CPJ 53 (SC).
16 Order 27, R. 5 A of the Code of Civil Procedure 1973.
ISSUE 3
WHETHER NEHTHRA HOSPITAL AND BSC NGO IS LIABLE FOR DEFICIENCY OF

SERVICE
There are two purposes behind the tortuous liability, firstly, it provides compensation in terms of
money to those injured as a result of negligence of doctors/hospitals, thereby operates as a source of
indemnity. Secondly, by imposing sanctions on guilty professionals, it functions as a deterrent to
future negligent behavior.
SUBSTANTIVE PRINCIPLES IN LAW:
MEDICAL NEGLIGENCE
Poonam Verma v. Ashwin Patel & Ors."- In this case, the Supreme Court delved into the issue of
what is medical negligence. In the context, the Court
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17 (1996) 4 SCC 332 15
held as under: "Negligence has many manifestations-it may be active negligence, collateral
negligence, comparative negligence, concurrent negligence, continued negligence, criminal
negligence, gross negligence, hazardous negligence, active and passive negligence, willful or
reckless negligence or Negligence per se."
Negligence per se is defined in Black's Law Dictionary as under:
Negligence per se-Conduct, whether of action or omission, which may be declared and treated as
negligence without any argument or proof as to the particular surrounding circumstances, either
because it is in violation of a statute or valid municipal ordinance, or because it is so palpably
opposed to the dictates of common prudence that it can be said without hesitation or doubt that no
careful person would have been guilty of it. As a general rule, the violation of a public duty,
enjoined by law for the protection of person or property, so constitutes.
Bhalchandra @ Bapu & Another v. State of Maharashtra," the Supreme Court opined that while
negligence is an omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do; criminal negligence is the gross and
culpable neglect or failure to exercise that reasonable and proper care and precaution to guard
against injury either to the public generally or to an individual in particular, which having regard to
all the circumstances out of which the charge has arisen, it was the imperative duty of the accused
person to have adopted.
This Court has dealt with the issues of medical negligence and laid down principles on which the
liability of a medical professional is determined generally and in the field of criminal law in
particular. Reference may be had to Jacob Mathew v. State of Punjab & Anr." The Court has
approved the test as laid down in Bolam v. Friern Hospital Management Committee, popularly
known as Bolam's Test, in its applicability to India. The relevant principles culled out from the case
of Jacob Mathew (supra) read as under:
--------------------------------------------------------------------------------------------------------------------
18 AIR 1968 SC 1319
19 (2005) 6 SCC 1.
20 [1957] 1 W.L.R. 582 16
(1) Negligence is the breach of a duty caused by 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 not do. The definition of negligence as
given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove,
holds good. Negligence becomes actionable on account of injury resulting from the act or omission
amounting to negligence attributable to the person sued. The essential components of negligence are
three: 'duty', 'breach' and 'resulting damage'.
WITHOUR REASONABLE CARE
The Halsbury Laws of England had said a medical practitioner holding himself ready to give
medical advice owes his patient,,a duty of care in deciding whether to undertake the case; a duty of
care in deciding what treatment to give; and a duty of care in his administration of that treatment.
The duty has many different aspects. In practice, it means effectively that the doctor must take
reasonable care for the wellbeing of the patient in all aspects of the medical context in which the
doctor is involved22. This includes the consultation (or visit) itself, giving advice" maintaining
confidentiality 25, making a diagnosis, referring the patent to a specialist or other doctor and giving
or prescribing any treatment. In addition to the obvious aspects of negligence, such as failure to give
an injection properly, the duty of care includes other aspects which can be described as non
technical for examples administration of drugs and the duty that includes informing the patient of
how
--------------------------------------------------------------------
21 Halsbury, 3rd Edn Vol 26, 17 para 22
22 Jones MA, Medical Negligence, 2nd edition, Sweet and Maxwell (1996) chs. 2-4
23 Morrison and others vs. Forsyth (1995)
24 Morrison and others vs. Forsyth (1995) 6 Med. LR 6.
25 Tucker vs. Tees Health Authority (1995) 6 Med LR 54
26 Sidaway vs. Board of Governors of the Bethlem Royal Hospital (1985), All ER 643.
27 Hunter vs. Hanley (1955) SC 2000.
the treatment is to be carried out28 and subsequent adverse effects29, communicating the relevant
and appropriate risk to the patient³° or what went wrong³¹ communicating relevant information to
other medical personnel32 or for junior has hospital doctors to call in more senior colleagues if
necessary³3.
LIABILITY ON NEHTHRA HOSPITAL
the Bolam test applies to health career.
The following tortuous liabilities can be classified into two categories, namely
(a) Individual liability and
(b) Institutional or hospital liability.
For the negligent acts like a medical professional, a hospital/health care centre or nursing home can
also be made liable. It is called health 'corporate liability' or 'institutional' liability. This kind of
liability is of two folds namely, i) primary/direct liability and ii) vicarious liability. Where the
negligence claim is targeted at the organization or administration of the hospital, such claims are
canvassed as direct liability claims against the hospitals. Vicarious liability is an exception to
normal legal principles under which individuals are usually liable only for their own actions and not
for those of others. Where a health carer is held liable for the acts of another because of some
relationship like employer and employee is called 'vicarious liability'
. However, the action of the Doctors and staff in the Government Hospital at not providing
treatment to the petitioner is contrary to the Code of Medical Ethics drawn up with the approval of
the Central Government under Section 33 of the Indian Medical Council Act, 1956, which states
that every Doctor, whether at the Government Hospital or otherwise, has professional obligation to
extend his services to protect the life. This obligation being total, absolute and paramount, laws or
procedures, whether in statute or otherwise cannot be sustained and, therefore must give way.
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28 Clarks vs. Adams, (1950) 94 SJ 599.
29 Fowlers vs. Greater Glasgrow Health Board (1990) SLT 303.
30 Moyes vs. Lothian Health Board (1990) SCT 444 31. Supra note
47. 32 Coles vs. Reading and District Hospital Management Committee (1963) 107 SJ 115.
33 Chapman vs. Rix (1994) 5 Med. LR 239.
34 Maharani Dey vs. Debabrata Bardhan (1984) ACT 95; AIR 1983, Gau 84. 18
ISSUE 4
WHETHER FREE SERVIC RENDERED BY ALL THREE ORGANISATIONS COMES

UNDER THE PERVIEW OF SERVICE?
In order to comply with the definition of consumer,' a person should have hired or availed of any
services for a consideration. The element of consideration serves as a test to determine whether a
patient is a consumer or not. Although the question of consideration constitutes an important
criterion, nowhere in the Act, the term has been defined.
SERVICE DEFINTION under consumer protection act, 1986
"Section 2(1) (o): "service" means service of any description which is made available to the
potential users and includes the provision of facilities in connection with banking, financing,
insurance, transport, processing, supply of electrical or other energy, board or lodging or both,
[housing construction], entertainment, amusement or the purveying of news or other information,
but does not include rendering of any service free of charge or under a contract of personal service;"
The literal interpretation of the definition shows that a person who wants to fall within the definition
must satisfy three conditions
A) The service must be hired by him;
B) The service should have been rendered to him
C) For hiring service, he must have paid or promised to pay consideration .
995 SCC (6) 651, it was in the case of Indian Medical Association vs V.P. Shantha & Ors on 13
November, 1995 Equivalent citations: 1996 AIR 550, 1held that.
We are of the view that in such a situation the persons belonging to "poor class" who are provided
services free of charge are the beneficiaries of the service which is hired or availed of by the
"paying class". We are, therefore, of opinion that service rendered by the doctors and hospitals
falling in category (iii) irrespective of the fact that part of the service is rendered free of charge,
would nevertheless fall within the ambit of the expression "service" as defined in Section 2(1) (0) of
the Act. We are further of the view that persons who are rendered free service are the "beneficiaries"
and as such come within the definition of "consumer" under Section 2(1) (d) of the Act.
Service rendered at a Government hospital/health centre/dispensary where services are rendered on

payment of charges and also rendered free of charge to other persons availing such services would
fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective
of the fact that the service is rendered free of charge to persons who do not pay for such service.
Free service would also be "service" and the recipient a "consumer" under the Act.
It was also held I a case Sowbhagya Prasad vs. State of Karnataka (1994) (1) CPR 140)( the State
Commission dismissed complaint filed against the governmental and doctor on the ground that
service rendered in the government hospital free of charge was not a service).that "It means if a
patient approaches a government hospital and gets wrong treatment or sustain injury due to the
negligence of the doctor, no complaint can be made, because service is provided free of charge.
It would thus appear that medical practitioners, though belonging to the medical profession, are not
immune from a claim for damages on the ground of negligence. The fact that they are governed by
the Indian Medical Council
-------------------------------------------------------------------------------------------------------------------
35 Dr. Baidyanath Chaudhary, Medical Negligence- Tortious liability and the recent trends in India,
CILI 2002, Vol. XV, p. 149) 20
Act and are subject to the disciplinary control of Medical Council of India and/or State Medical
Councils is no solace to the person who has suffered due to their negligence and the right of such
person to seek redress is not affected
MEDICAL SERVICE IS NOT A COMMERCIAL SERVICE
it is argued that members of medical profession are covered by the Indian Medical Council Act
1956 which provides a complete "code of conduct" and the said Act has not been superseded by the
CPA, thus, the provisions of the latter cannot have any application to the members of the medical
profession. The expression 'consumer,' 'service,' 'hires any service,' 'consumer disputes,' 'defect' and
deficiency have to be understood in a commercial sense only. The CPA has no application to the
medical profession at all or to the services rendered in hospital whether they are run by the
government or private agencies and it is wholly incorrect to say that the medical service is a service
under Section 2(1) (0) and a patient is a consumer.
ISSUE 5
WHETHER THE PATIENTS ARE ENTITLED TO COMPENSATION?
There is no codified law for arriving at the quantum of compensation in cases of this type. The
enactments like Motor Vehicles Act, 1988; Workmen Compensation Act, 1948; and Fatal Accidents
Act, 1855 may be applied for arriving at just compensation.
case of A.M. Mathew vs. the Director, Karuna Hospital and others where an eight year old boy
was taken to hospital following fever and cold, the doctor prescribed an injection which was
administered by the nurse immediately developed paralysis of left leg. The complainant demanded
compensation on the doctrine evolved by the National Commission that the hospital is responsible
for the acts of its employees and the hospital is liable for the consequence. The court held that
minor child had suffered on account of negligence of the nurse who was an employee of the
hospital. Hence the hospital is liable to pay damages to the complainant for the treatment
expenditure and cost of proceedings.
In Mari Singh and State of Haryana vs. Sukhbir Singh, the Supreme Court directed all criminal
courts to exercise the power of awarding compensation to victims of offence in liberal way that the
victims or their legal representatives may not have to rush to the civil courts for compensation. It
may be argued that incidentally Indian Penal Code 1860 does not specify the crime of medical
negligence, nonetheless, negligent act of the doctor causing hurt, grievous hurt or death has been
brought within the ambit of the provisions of Indian Penal Code. A doctor may be punished for
causing death by rash and negligent act 37, causing hurt by act endangering life or personal safety
of others and causing grievous hurt by act endangering life or personal safety of others.39 It is
humbly pleaded before this court that as the petitioner has proved breach of duty and has shown that
damage has resulted from that breach,.. The assessment of damages is based upon the principles and
methods of calculation evolved in the laws of contract and tort.
Granting of compensation for personal injury upon the establishment of liability of the defendant-
medical practitioner/hospital, is neither punishment or nor reward. The principle or rationale on
which damages are assessed is that they should not be treated as punishment for a wrong inflicted. It
is held by the court of appeal in UK that the object of granting damages in tort or in contract is to
indemnify the plaintiff so far as personal injury which he had suffered on account of negligence of
the defendant". Nonetheless, assessing the financial
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36 1988 SC 2127; 1989 Cr.L.J. 116 (SC)
37 Section 304-A of IPC.
38 Section 337 of IPC.
39 Section 338 of IPC.
40 In Ballantine vs Newalls Company Limited (2001)1 ICR 25, it was held that a person who suffers mental anguish can recover
compensation. Similarly, a person who is physically or mentally incapacitated by his injuries is entitled to be compensated for the
anguish (H West vs Shephard (1964) AC 326). 23
value of loss is ultimately arbitrary and indeed no amount of money can restore a lost limb or take
away the plaintiff's experience of pain and suffering. therefore it is humbly prayed that, Where
inexact or un liquidated losses are compensated by an award of damages what is known as 'general
damages.' This includes the non-pecuniary losses which are compensated under the heads of pain
and suffering", loss amenity, future losses of income or profits" and future expenses such as care
and accommodation.
It is humbly brought into the Hon'ble court that, in the similar case Dr.Nelson and others vs, State,
the Madurai bench of Madras High court upheld the compensation award rendered by the trial court
of Rs.50,00,000 and such, as per workman compensation act, 1923. Hence taking into
consideration, the court may grant compensatory award of Rs.1 Crore to the affected village people,
who have lost their income, lost their vision, under mental agony and pain of pain were also taken
into account while fixing the compensation.
The National Human Rights Commission too has also taken up the issue, and is considering draft
legislation seeking to protect the rights of patients and ensure that standardised treatment is made
available to everyone.
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41 In Ballantine vs Newalls Company Limited (2001)1 ICR 25, it was held that a person who suffers mental anguish can recover
compensation. Similarly, a person who is physically or mentally incapacitated by his injuries is entitled to be compensated for the
anguish (H West vs Shephard (1964) AC 326).
42 In assessing damage for the loss of amenities, the court generally take into the consideration: dependence of the injured on the
help of other in his daily life (Heaps vs Perrite Limited (1937)2 All ER 60), the inability to lookafter (Rourke vs Bouton, The Times,
23rd June 1982), sexual impotency (Cook vs JL Kier (1970)1 WLR 774), inability to lead life which injured used to lead (Owen vs
Sykes (1936)1 KB 192) and loss of prospects of marriage (Harris vs Harris (1973)1 Llyod's Rep 445).
43 In Nutbrown vs Sheffield Health Authroity (1993)4 Med. LR 187, the court awarded damaged on basis of the age and future
prospects of the plaintiff.
PRAYER
WHEREFORE, in the lights of the facts used, issues raised, arguments advanced and
authorities citied the counsel for the Petitioner most humbly and respectfully prayed that this
Hon'ble court to issue a writ of mandamus directing the respondents to consider petitioner's
representations and consequently direct the respondents to pay compensation of Rs.10 lakhs
to the petitioner,
1) For the loss/death of child of the petitioner due to the delay in conducting caesarean
2) for pain, sufferings and mental agony she undergone
By the negligent acts done by the staffs and Doctors in the Government Hospitals in Tamil
Nadu and Pondicherry. The court may also be pleased to pass any other order, which this
Hon'ble court may deem fit in the light of justice, equity and good Conscience.
Counsels for the Appellants

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MOOT COURT CASE SUBMISSION-TY LLB (SEM-ST"), 2023 - 2024

BEFORE THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL

APPEAL NO. -----------------------------------

(Presently accused at Yerwada Central Jail, Pune)

For OFFENCE CHARGES UNDER

Section 376(A), 397,302.404;120(B) of THE INDIAN PENAL CODE

UPON SUBMISSION TO THE HON'BLE HIGH COURT JUDGE

MEMORANDUM ON BEHALF OF THE DEFENCE

SUBMITTED TO: PROF. ADV. Priyanka mahadik

LIST OF ABBREVIATIONS USED

INDEX OF AUTHORITIES STATEMENT OF JURISDICTION

STATEMENT OF FACTS STATEMENT OF ISSUES

Whether the appeal against conviction is maintainable?

The Article 226 of Constitution of India reads as hereunder:

Article 226. Power of High Courts to issue certain writs

WHETHER THE CASE IS MAINTANABLE?

Article 226. Power of High Courts to issue certain writs

CONSTITUTIONAL OBLIGATIONS TO PROVIDE MEDICAL SERVICES:

WHETHER THE GOVERNMENT OF RAMORE NAGAR HELD LIABLE FOR

T.12011 | L4/20 1s- FJ CD/BA

iv) Sungical supplies 12

GOVERNMENT HELD VICARIOUSLY LIABLE

13 1996) 2 SCC 634; (1996) 4 CTJ 950 (SC)

WHETHER NEHTHRA HOSPITAL AND BSC NGO IS LIABLE FOR DEFICIENCY OF

SUBSTANTIVE PRINCIPLES IN LAW:

Negligence per se is defined in Black's Law Dictionary as under:

WITHOUR REASONABLE CARE

LIABILITY ON NEHTHRA HOSPITAL

the Bolam test applies to health career.

(a) Individual liability and

(b) Institutional or hospital liability.

WHETHER FREE SERVIC RENDERED BY ALL THREE ORGANISATIONS COMES

SERVICE DEFINTION under consumer protection act, 1986

Service rendered at a Government hospital/health centre/dispensary where services are rendered on

MEDICAL SERVICE IS NOT A COMMERCIAL SERVICE

WHETHER THE PATIENTS ARE ENTITLED TO COMPENSATION?

2) for pain, sufferings and mental agony she undergone

Counsels for the Appellants

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