(Memorandum on Behalf of Appellant)

TC-14
AMITY LAW SCHOOL, AMITY UNIVERSITY MADHYA PRADESH.

BEFORE THE HON’BLE SUPREME COURT OF JUDICATURE AT

TRENTLAND

In the Matter of:

(S.L.P.(Civil) No.………./2021)

Richard Garry_ _ _ _ _ _ _ _ _ _ _ _ _ _ Appellant

v.

Modi Group_ _ _ _ _ _ _ _ _ _ _ _ _ _ Respondent

Through its administration/ Management

On submission to the Hon’ble Supreme Court of Trentland

Under Special leave to Appeal Jurisdiction (Civil) exercised under

Article- 136 of the Trentland Constitution, 1950

MEMORANDUM ON BEHALF OF APPELLANT

 (Memorandum on Behalf of Appellant)

TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………………………........01

INDEX OF AUTHORITIES………………………………………………………….........02

STATEMENT OF JURISDICTION…………………………………………………........04

STATEMENT OF FACTS……………………………………………………………........05

STATEMENT OF ISSUES…………………………………………………………….......07

SUMMARY OF ARGUMENTS……………………………………………………...........08

ARGUMENTS ADVANCED…………………………………………………………........10

ISSUE 1: Is the Modi administration guilty of wilful and medical negligence?.......................10-16

[A] What are the responsibilities of the organisers while planning an event in respect
of the present moot proposition? Were these responsibilities fulfilled by the event
organisers (Modi Group)?

[B] Whether the respondents owe duty of care towards appellants and there was
subsequent breach of such duty, if owed any?

[C] Whether the actions of respondents amount to wilful and medical

negligence, either directly or vicariously?

ISSUE 2: Is Richard liable to Modi group for civil defamation?...............................................17-20

[A] Whether the finding of the High Court dropping the charges for civil
defamation is challenged by the respondents and its effects thereto?

[B] Whether the non-challenge of Hon’ble High Court’s order in respect of

civil defamation amounts to attainment of finality of the said findings and can
the respondent’s assail the same in the present petition?

[C] Is Richard liable for Civil Defamation considering the merits to the case?

ISSUE 3: Was there a breach of contract by one of the parties?...............................................21-22

ISSUE 4: Is either party entitled to compensation for the loss/harm suffered?.......................23-24

PRAYER…………………………………………………………………………………….25
 (Memorandum on Behalf of Appellant)

LIST OF ABBREVIATIONS

& And
A.I.R. All India Reporter
HL House of Lords
UK United Kingdom
Art. Article of Indian Constitution
cl. Clause
Ors. Others
S.L.P. Special Leave Petition
e.g. Example
Ed. Edition
Etc. Extra
i.e. That is
Gov. Government
Hon’ble Honourable
H.C. High Court
INDIA CONSTI. Constitution of India
No. Number
S. Section
Ss. Sub-section
S.C. Supreme Court
S.C.C. Supreme Court Cases
U/s. Under Section
v. Versus
Vol. Volume
w.e.f. With effect from

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 (Memorandum on Behalf of Appellant)

INDEX OF AUTHORITIES

CASES REFERRED & CITED

1. Rylands Vs Fletcher (1868) UK HL1 (United Kingdom)

2. Poonam Verma vs Ashwin Patel & Ors [1996 SCC (4) 332], (India)
3. Suresh Gupta v. Government of NCT, Delhi, (2004) 6 S.C.C. 422 (India)
4. Jacob Mathew v. State of Punjab & Another , (2005) 6 SCC 1 (India)
5. Indian Medical Association v. V.P. Shantha & Others, (1995) 6 SCC 651(India)
6. Maharaja Agrasen Hospital v. Pooja Sharma & Ors, Civil Appeal No. 9461 Of
2019, (India)
7. Neelima Shrivastava v. State of Uttar Pradesh (Civil Appeal No. 4840/2021),
(India)
8. Naresh Shridhar Mirajkar v. State of Maharashtra & Anr. (A.I.R. 1967 S.C. 1 )
(india)
9. Union of India v. Kanhaiyalal Sharma (A.I.R. 1957 PH 117), (India)
10. Overseas Tankship (UK) Ltd. v. Morts Dock and Engg. Co. Ltd. (1961) A.C. 388
(United Kingdom)
11. Oil and Natural Gas Ltd. v SAW Pipes Ltd. (2003) 5 SCC 705 (India).

BOOKS REFERRED:

• Durga Das Basu, Commentary on the Constitution of India, Lexis Nexis Butterworths
Wadhwa Nagpur (8thed. 2012)
• Halsbury’s laws of India (2008).
• M.P. Jain, Indian Constitutional Law, Lexis Nexis (7th Edn. reprint 2016).
• Law of Torts, R.K. Bangia, Allahabad Law Agency
• Law of Contract, R.K. Bangia

STATUTES REFERRED:

• Constitution of India, 1950

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 (Memorandum on Behalf of Appellant)

• Contract Act, 1872

• Law of Tort

DATABASES REFERRED:

• Manupatra, http://www.manupatrafast.in
• LexisNexis, http://www.lexisnexis.com
• Oxford Dictionaries, http://www.oxforddictionaries.com
• The Law Dictionary, http://www.thelawdictionary.org
• Supreme Court of India, http://www.judis.nic.in
• Supreme Court Cases, http://www.courtnic.nic.in
• Indian Kanoon, https://indiankanoon.org/

LEGAL DICTIONARIES:

• Black’s Law Dictionary (10th Edn. 2014).

• P Ramanatha Aiyar’s, Concise Law Dictionary, Lexis Nexis (4th Edn. 2012)
• William P. Statsky, Legal Thesaurus (West Publishing eds., 3rd ed. 1986).
• Dr. Kathey Rooney, Bloomsbury Concise English Dictionary (Bloomsbury
Publishing Plc. eds., 2nd ed. 2005).

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 (Memorandum on Behalf of Appellant)

STATEMENT OF JURISDICTION

The Appellant has approached the Hon’ble Supreme Court of Trentland under Article-136 of
the Constitution of Trentland assailing the order of the Hon’ble High Court, whereby the
Hon’ble High Court has passed the judgement in the favour of the respondents (Modi Group),
whereby the hon’ble Court has directed present appellant/appellant to deposit advance
amount of payment for the events in which he did not perform. This was to be paid with an
interest rate of 18 percent, wherein the claim of respondent was affirmed against the
appellant.

Furthermore, the Hon’ble Court found appellant not guilty of civil defamation vide the same
order/ judgment, assailed and impugned herein, which is not disputed by the appellant herein.

For the sake of easy convenience of Hon’ble Supreme Court, the bare text of Article
136 of the Constitution of Trentland is herewith reproduced: -

“136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India.

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or

order passed or made by any court or tribunal constituted by or under any law
relating to the Armed Forces.”

Therefore, the present appeal is maintainable before the Hon’ble Court and is the only
efficacious remedy for the grievance articulated by the appellant herein after.

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 (Memorandum on Behalf of Appellant)

STATEMENT OF FACTS

1. Modi Group is a Trentland-based multinational corporation with a Global Business

Network. Modi Group is well-known for their high-quality services and customer
focused approach. Richard Garry is a resident of Trentland and is a heavy-metal vocal
artist. Richard has many fans around the globe and he also promotes heavy metal
music with full dedication.

2. Richard Garry agreed to the terms of the contract which took place between both the
parties which stated that, Richard will be paid 3.5 million US Dollars for a total of 10
perfomaces in various countries and the countries were pre-decided (clarification
no. 2).

3. The first event was a hit in Finland according to the social media and other reliable
news sources. The next place scheduled was Clerden, this was a developing country
which has a very small metal fans base, thus the artist insisted on changing the
location, but as all the arrangements were done, the organizers denied the request.

4. During the event, a lot of Clerden residents were infected with “Pharyngitis’ at the
time of the event which took place at the Clerdon’s beach. Richard rested in his him
after the event due to throat discomfort and soon he developed a headache and severe
tonsils. He was then admitted to the Modi Hospital and as taken to a room where he
stated having more discomfort as the room was poorly ventilated. The medication
didn’t suit him and because of which he and his team rushed to Trentland to receive
better care because of the hurry they were not able to convey the same to the
organizers. It was assumed by the organizers that the infection was a minor one, thus
they started preparing for the Sweden event.

5. Later, the organizers learned that the artist has left and cannot continue to be a part of
the further performances, then they called the artist’s manager and threatened them
with appropriate consequences if the artist did not make himself available for the next
week.

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 (Memorandum on Behalf of Appellant)

6. The next day, the artist went live on social media and claimed that he had been
mistreated by the organizers and that they were planning to harm him. “I signed up for
this event to reach out to as many metal music fans as possible, and I signed up to
give power to the people through our music,” the artist explained. The Finland event
was a huge success; I’m not sure what happened to make them treat me and my staff
so poorly. Clerdon was a low point in my career because the facilities were
deplorable. Doctors here have informed me that the medication provided in Clerdon
did not suit my body, and that the infection is severe. My career is on the line, and
perhaps money is the only thing those inhumane capitalists care about.”

7. This went viral and the fans of the artist were triggered by the message and pelted
stones on the modi groups property and hashtags too such as #InhumaneModi and
#BoycottModi began trending social media. The artist’s tour got cancelled due to the
campaign. The Modi group suffered significant financial losses as a result of the
campaign. In response the Modi group sued Ricahrd for breach of contract and civil
defamation and Richard filed a cross case against the Modi group of for Negligence
and Medical Negligence. Following the decision in favour of the Modi group,
Richard went to Trentland’s Supreme Court after the decision which has been passed
in favor of Modi Group by the Hon’ble High Court in which the Court directed
Richard to deposit advance amount of payment for the events in which he did
not perform. This was to be paid with an interest rate of 18 percent. For
defamation, the Court found Richard Garry innocent. (Clarification as mentiond
under part 5)

Note: The laws of Trentalnd are pari-materia to the laws of Republic of India.

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 (Memorandum on Behalf of Appellant)

STATEMENT OF ISSUES

ISSUE 1: Is Modi Group administration guilty of wilful and Medical Negligence?

[A] What are the responsibilities of the organisers while planning an event in respect
of the present moot proposition? Were these responsibilities fulfilled by the event
organisers (Modi Group)?

[B] Whether the respondents owe duty of care towards appellants and there was
subsequent breach of such duty, if owed any?

[C] Whether the actions of respondents amounts to negligence and there by

amounting to medical negligence, either directly or vicariously?

ISSUE 2: Is Richard liable to Modi Group for civil defamation?

[A] Whether the finding of the High Court dropping the charges for civil defamation
is challenged by the respondents and its effects thereto?

[B] Whether the non-challenge of Hon’ble High Court’s order in respect of civil
defamation has attained finality and can the respondent’s assail the same in the
present petition?

[C] Is Richard liable for Civil Defamation considering the merits to the case?

ISSUE 3: Was there a breach of Contract by one of the parties?

ISSUE 4: Is either party entitled to compensation for the loss/ harm suffered?

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 (Memorandum on Behalf of Appellant)

SUMMARY OF ARGUMENTS

ISSUE 1: Is Modi Group administration guilty of wilful and Medical Negligence?

The Modi Group administration is guilty of wilful and medical negligence as safety measures
be it in the Clerden beach or at the Modi hospital were not met by the expected standards as
was expected by such a reputed multinational corporation who serves world class high
quality services and customer focused approach.

[A] What are the responsibilities of the organisers while planning an event in
respect of the present moot proposition? Were these responsibilities fulfilled by
the event organisers (Modi Group)?

The responsibilities, treatment and hospitality which are expected from a highly reputed
corporation should be something extraordinary and this was not achieved by the Modi group,
as large number of residents of Clerden had “Pharyngitis” but still chose to have an event
there. So, the safety measures were not fulfilled by the Modi group and this resulted in a great
deterioted health of the appellant.

[B] Whether the respondents owe duty of care towards appellants and there was
subsequent breach of such duty, if owed any?

The respondents owed a duty of care towards appellant as the organisation of the event which
constituted 10 performances in different places and the hospitality which is inclusive of the
safety measures in all respect is to be taken care and all this was in the hands of the
respondents and they have not fulfilled their duties be it during the Clerden performance or
the treatment provided in the Modi hospital. The lack of ventilation shows a great level of
breach of the duty of care which resulted in the ill health of the appellant.

[C] Whether the actions of respondents amount to negligence and thereby

amounting to medical negligence, either directly or vicariously?

The actions of the respondents definitely amount to negligence as they were responsible for
providing adequate hospitality services to the appellant which they have failed to do so. The
organisers are liable directly as well as vicariously because it has been a clear cut negligent
act on the part of Modi group as well as on the part of the Modi hospital.

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 (Memorandum on Behalf of Appellant)

ISSUE 2: Is Richard liable to Modi Group for civil defamation?

No, Richard is not liable to Modi group for Civil Defamation.

[A] Whether the finding of the High Court dropping the charges for civil
defamation is challenged by the respondents and if not, its effects thereto?

No, the suit partly dismissed in respect of the issue of civil defamation caused by the
appellant has not been challenged before the appellate court by the respondents

[B] Whether the non-challenge of Hon’ble High Court’s order in respect of civil
defamation has attained finality and can the respondent’s assail the same in the
present petition?

Yes, the finding of the Hon’ble High Court has attained finality due to the non assailing of
the decree/judgment by the respondent and the said order in respect of civil defamation has
attained finality and therefore, the finding of the Hon’ble Court in dropping the charge of
civil defamation against the appellant has attained finality.

[C] Is Richard liable for Civil Defamation considering the merits to the case?

No, because everything forecasted on social media is true and correct to the best of the
knowledge of the appellant, which is a valid ground of defence in the civil defamation,
including libel as well as slander.

ISSUE 3: Was there a breach of Contract by one of the parties?

Yes, the Modi group should be held liable for breach of contract because the Modi group has
breached their obligations which were ancillary to the duties of the event management, if
applied, observed and perused by way of application of doctrine of ejusdem generis and the
rules of the construction as well as interpretation of contracts and contract law in the light of
the general terminology used in moot proposition as “and other event management
responsibilities”.

ISSUE 4: Is either party entitled to compensation for the loss/ harm suffered?

Yes, Modi group is liable for the compensation for the loss/harm suffered by the appellant by
way of indulgence of the doctrine of remoteness of damages coupled with the test of
reasonable foresight in the light of the provisions of section 73 of the Indian Contract Act,
1872.

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 (Memorandum on Behalf of Appellant)

ARGUMENTS ADVANCED

ISSUE 1

Is Modi Group administration guilty of wilful and Medical Negligence?

1. It is humbly submitted on behalf of the appellant that for the sake of convenience of the
Hon’ble Court, the present issue has been further divided into three sub issues which
shall be dealt descriptively as follows: -

[A] What are the responsibilities of the organisers while planning an event in respect of
the present moot proposition? Were these responsibilities fulfilled by the event
organisers (Modi Group)?

2. As per paragraph 3 of the moot proposition which clearly forecasts that Modi Group was
in-charge of the artist’s (Appellants) hospitality, management and other event
management responsibilities, which as per the rules of construction and interpretation
of contract specifically including and applying the rule of ejusdum generis which means
“of the same kind and species” includes all other similar obligations which arises out of
the phrase event management responsibilities.

3. The event management responsibilities at the very forefront includes that of providing
health, safety and protective measures to the host and the entire responsibility and
well being of the environment surrounding the host lies on the organisers.

4. The aforesaid responsibility for taking care of the health and safety measures of the
client as well as host lies with the event management organisation which is
specifically recognised in United Kingdom by the statute been titled as Health and

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 (Memorandum on Behalf of Appellant)

Safety at Work Act 19741 and accompanying Regulations, under which Organisers
are responsible for the safety of everyone at the event. This includes the public,
employees, contractors and volunteers, which came as a hailing provision in the
present times of COVID-19 Pandemic striked the Trentland’s territory and was
thereby recognised under the “Epidemic Diseases Act of 1897” and the allied rules
and regulations notified there under and the suo motu cognizance taken of the
pandemic situation by the Hon’ble Supreme Court and Hon’ble High Court of
respective states.

5. It is informed that the respondents were well aware of the fact that the large
population of Clerden were infected with “Pharyngitis” at the time of the event which
is highly contagious in nature and is infected by both virus and bacteria, whereby duty
of care as postulated in the landmark case of Rylands Vs Fletcher (1868) UK HL12
and as enunciated and adopted by the Hon’ble Supreme Court of Trentland in the case
of Poonam Verma Vs Ashwin3 wherein this Hon’ble Court held as follows:-

“13. Negligence as a tort is the breach of a duty caused by omission to do

something which a reasonable man would do. or doing something which a
prudent and reasonable man would not do. (See : Blyth vs. Birmingham
Waterworks Co. (1856) 11 Ex 781; Bridges vs. Directors, etc. of N.L. Be.
(1873-74) LR 7 HR 213; Governor-General in Council vs. Mt. Saliman (1948)
ILR 27 Pat. 207; Winfield and Jolowicz on Tort).

14. The definition involves the following constituents: (1) a legal duty to
exercise due care; (2) breach of the duty; and (3) consequential damages.

15. The breach of duty may be occasioned either by not doing something
which a reasonable man, under a given set of circumstances would do, or, by
doing some act which a reasonable prudent man would not do.”

1
Health and safety responsibilities, HASTINGS.GOV, (Oct. 25, 2021, 9:54 AM),
https://www.hastings.gov.uk/event-planning/responsibility/
2
Rylands Vs Fletcher (1868) UK HL1 (United Kingdom)
3
Poonam Verma vs Ashwin Patel & Ors [1996 SCC (4) 332], (India)

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 (Memorandum on Behalf of Appellant)

6. More so, the duty of care for providing a safe and secure environment is bestowed
upon the event organizers which is the respondents in the present matter and the same
makes them liable for any mishappening accounted or happened ancillary thereto, as
due to their breach of duty of care to the contractor, host, audience brings them under
the purview of negligence which has been categorically affirmed in the following
decisions of Hon’ble Court’s across the world4: -

United States

The issues of crowd management and crowd safety are given due importance in the United
States of America (“USA”).

The case of Gallagher v. Cleveland Brown Football Company ((1996) 74 Ohio St.3d 427),
illustrates the legal implications surrounding improper seating arrangements in a sporting
event. In this case, the plaintiff, a television sports caster alleged that the defendants, a
professional football team, corporation, and stadium were negligent in failing to provide him
with a safe place to videotape the game, because of which, he was required to kneel in an
unprotected area of the field, making him prone to collisions with oncoming players. This
case effectively illustrates the issues concerning assumption of the risk and depicts the
elements of the law associated with this defence. The Supreme Court of Ohio held that “only
those risks directly associated with the activity in question are within the scope of the
assumption of the risk defense”. Thus, no duty is owed by the event/venue manager to protect
a plaintiff from such a risk. Additionally, primary assumption of the risk “prevents a plaintiff
from establishing the duty element of a negligence case and so entitles a defendant to
judgment as a matter of law”. In the instant case, the defendants conceded that a duty was
owed to the plaintiff to warn of hidden dangers of which the defendant had actual knowledge.
The event/ venue managers were ultimately held responsible for improper standards of crowd
management.
However, this was not upheld in Lowe v. California League of Professional Baseball ((1997)
56 Cal. App . 4th 112), where a spectator at a baseball game sued for injuries he sustained
when he was struck by a foul ball while attending the game. The court held that generally
baseball team owners owed no duty to the plaintiff to protect him from foul balls under the

4
Shibumi Raje, Event Organisers’ Liability for Crowd Management and Crowd Safety, WORDPRESS, (Oct. 25, 2021,
10:00 AM )https://lawnk.wordpress.com/2012/09/30/event-organisers-liability-for-crowd-management-and-crowd-safety/

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 (Memorandum on Behalf of Appellant)

doctrine of assumption of risk; however, “the defendant did owe a duty not to increase the
inherent risk to which the spectator at the game was regularly exposed and which a spectator
would assume”.
Recently, in the case of Sarah Weber Brisbin v. Washington Sports and Entertainment
Ltd. (422 F. Supp. 2d 9), the US District Court granted summary judgment in the favour of
the owner of a sporting arena, as the plaintiff failed to establish the standard of care by which
to measure the owner’s crowd control and further because there was no evidence that the
crowd was unruly.

United Kingdom

The first recorded example of stadium occupiers being held liable for a defective stand was in
the case of Francis v. Cockrell ([1870] QBD 501). A part of the stand collapsed and the court
upheld a claim against the occupiers even though the negligence had been on the part of the
builders. The courts held that a contract existed between the spectator and the occupier with
an implied term ensuring a reasonable standard of safety. Today, it is likely that such a claim
will not be upheld against the occupiers.
Section 2 of the Occupier’s Liability Act, 1957, mandates that an occupier of premises owes
the same duty, the ‘common law duty of care’, to all his visitors, except in so far as he is free
and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or
otherwise. In the case of White v. Blackmore ([1972] 2 QB 651), it was held by the Court of
Appeal that warning notices placed at the entrance of the venue stating that the organisers
would not be liable for accidents to spectators however caused, had effectively avoided
liability.
The Guide to Safety at Sports Grounds published by the Department for Culture, Media and
Sport, also known as the Green Guide, is a comprehensive guide on crowd management and
crowd safety. Although the Green Guide is not enforceable by itself, many of its
recommendations have been included in safety certificates issued under the Safety of Sports
Grounds Act, 1975 or the Fire Safety and Safety of Places of Sport Act, 1987.

Bolton v. Stone ([1951] UKHL 2), is one of the earliest cases, where the principle of
occupier’s liability was upheld. In the present case, the trustees of a field where cricket was
played were held responsible for the negligent action of persons who used the field in the way
that it was intended to be used.

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 (Memorandum on Behalf of Appellant)

The Hillsborough disaster, as it is commonly called, took place in 1989. 96 persons perished
while hundreds were injured in an instance of previously unseen spectator violence. In the
years that followed, the steps taken included the Taylor Report for which Taylor LJ was
appointed to inquire into the events and make recommendations about the needs of crowd
control and safety at sports events. In the Hillsborough Independent Panel Report, which was
released on September 12, 2012, the disaster was attributed to multiple failures by emergency
services and public bodies.

Australia

The legislative framework and enforceability surrounding crowd management and crowd
safety is far more advanced in Australia compared to other jurisdictions. There have been
legislations in place addressing the issue of crowd management, safety, liability and other
issues. The central legislation in this respect was the Major Events (Crowd Management
Act), 2003, which was repealed by the Major Sporting Events Act, 2009.

New Zealand

In the case of Evans v. Waitemata Pony Club ([1972] NZLR 773 (NZ)), a horse which was
tethered to a branch, broke free causing injury to a group of spectators, due to the inadequate
provision of hitching rails and no separate enclosure for competing horses. The organisers
were found liable for damages because they did not meet their responsibility to ensure the
area and modes of operation were reasonably safe.

7. Therefore in the light of the aforesaid discussion the respondents owed duty of care
for the health, safety and security of the appellant being the event management
organization.

[B] Whether the respondents owe duty of care towards appellants and there was
subsequent breach of such duty, if owed any?

8. It is humbly placed, in the light of the aforesaid conspectus the organisers/ respondent
owed duty of care towards the appellant in providing safe and secured atmosphere for

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 (Memorandum on Behalf of Appellant)

his concert, primarily when they were already aware of the fact that “Pharyngitis”
epidemic has striked the territory of Clerden and this duty manifold increases the
reasonable expectation of the appellant wherein it is admitted that Modi Group
/Respondent is well known for their high quality services and customer focused
approach.

9. That, the suffering faced by the Appellant immediately after the culmination of the
Clerden’s performance and development of sever tonsils and headache which are the
primary symptoms of pharyngitis clearly shows that the respondents failed in
exercising duty of care and thereby breached the same due to which such
complications arose in health of the appellant and therefore, the respondents are
reliable for negligence as they breached the very duty of their contractual
commitment.

[C] Whether the actions of respondents amount to wilful and medical negligence, either
directly or vicariously?

10. That, according to paragraph 6 of the moot proposition, the appellant was admitted to
Modi Hospital being runned by Modi Group in Clerden, on the premise of
development of headache and severe tonsils giving an indication of being diagnosed
with pharyngitis whereby the Appellant was subsequently taken to care room which
lacked ventilation was in clear violation to the standard procedure being adopted by
the Modi Hospital despite of being known that the major population of Clerden was
infected by this contagious disease and the complexity in health being diagnosed with
pharyngitis increases manifolds when the airway is compromised and may result in
death of a person.

11. Therefore, keeping appellant in a room which lacked ventilation accompanied with
the factum that the medication which were given to the appellant were having
negative impact on him is regarded as gross mistake and gross negligence as per the

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 (Memorandum on Behalf of Appellant)

mandate of the Hon’ble Supreme Court passed in the cases of “Dr. Suresh Gupta”5,
“Jacob Mathews”6 and “Indian Medical Association Vs V.P. Shantha and othrs.
1995”7.

12. Furthermore, the said mistake in medication was also affirmed by the doctors in
Trentland which came in paragraph 7 of the moot proposition and qualifies as one of
the grounds of holding respondents liable for medical negligence in the line of the
procedure enunciated for the time being in the case of Jacob Mathews (Supra).

13. Thus, applying the Bolam’s test as approved by this Hon’ble Court in the aforesaid
series of cases at the touchstone of the factual matrix provided in the moot proposition
holds the respondents as vicariously liable for the actions of the doctors working in
Modi Hospital.

14. Henceforth, recently this Hon’ble in the case of “Pooja Sharma and Others Vs
Maharaja Agrasen Hospital and others 20198 observed as follows: -

“11.4.17 It is well established that a hospital is vicariously liable for the acts
of negligence committed by the doctors engaged or empanelled to provide
medical care. It is common experience that when a patient goes to a hospital,
he/she goes there on account of the 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 their doctors, being 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.”

15. Therefore, in the light of the above stated facts and legal proposition settled, the
respondents are liable for medical negligence.

5
Suresh Gupta v. Government of NCT, Delhi, (2004) 6 S.C.C. 422 (India)
6
Jacob Mathew v. State of Punjab & Another , (2005) 6 SCC 1 (India)
7
Indian Medical Association v. V.P. Shantha & Others, (1995) 6 SCC 651(India)
8
Maharaja Agrasen Hospital v. Pooja Sharma & Ors, Civil Appeal No. 9461 Of 2019, (India)

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 (Memorandum on Behalf of Appellant)

ISSUE 2

Is Richard liable to Modi Group for civil defamation?

16. It is respectfully placed before the Hon’ble Court that the appellant is not liable for
civil defamation for the reasons following herein after.

[A] Whether the finding of the High Court dropping the charges for civil defamation is
challenged by the respondents and its effects thereto?

17. The counsel fairly submits in respect of this sub-issue that, the queer perusal of the
paragraphs no. 11 and 12 of the moot proposition clearly provides that there were 2
distinct suits preferred by the appellant and respondent, respectively for the purposes
of their individual claims, wherein the Hon’ble High Court passed the decree in the
suit of the respondents declaring that the appellant be directed to return the advance
amount for the performances not conducted with an interest of 18% and not finding
the appellant’s liable for civil defamation against the respondent, as has been
provided through clarifications issued by the organisers in relation to the moot
proposition.

18. Thereafter, the appellant approached the Hon’ble Supreme Court assailing the adverse
findings passed by the Hon’ble High Court by preferring the present appeal
impugning the decree passed in the suit preferred by the respondent, along with the
rejection decree passed in the cross-suit filed by the appellant for his claims, as it is
clearly provided in the moot proposition that the decision was passed in the favour of
the Modi Group.

19. In the backdrop of the aforesaid factual matrix, there is no whisper even impliedly
that the finding/decision passed in respect of the civil defamation claim of the
respondent, the respondent’s have assailed the said adverse findings of the impugned
order, as bare perusal of paragraph 12 of the moot proposition specifically quotes, that
“Richard went to Trentland Supreme Court” , categorcailly postulates that the

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 (Memorandum on Behalf of Appellant)

adverse finding in relation to the civil defamation passed in favour of the appellant
has not been challenged by the respondent’s before appropriate appellate forum,
which is this Hon’ble Court.

[B] Whether the non-challenge of Hon’ble High Court’s order in respect of civil
defamation amounts to attainment of finality of the said findings and can the
respondent’s assail the same in the present petition?

20. The counsel respectfully places before the Hon’ble Court, that in the light of the
recent judgment of this Hon’ble Court passed in the case of Neelima Shrivastava v.
State of Uttar Pradesh (Civil Appeal No. 4840/2021)9 judgment dated 17.08.2021
has categorically observed as follows:

“It is pertinent to point out at this stage that the aforesaid common judgment
rendered in the two Writ Petitions filed by the appellant attained finality as it
was not put to challenge before any higher forum.”

Furthermore, the Hon’ble Court has settled the very legal matrix in respect of non-
challenge of a finding of a judgment, in the landmark case of Naresh Shridhar
Mirajkar v. State of Maharashtra & Anr. (A.I.R. 1967 S.C. 1 )10 has caterogically
enunciated the following:

“When Judge deals with matters brought before him for his adjudication, he
first decides questions, of fact on which the parties are at issue, and then
applies the relevant law to the said facts. Whether the findings of fact recorded
by the Judge are right or wrong, and whether the conclusion of law drawn by
him suffers from any infirmity, can be considered and decided if the party
aggrieved by the decision of the Judge takes the matter up before the appellate
Court.”

9
Neelima Shrivastava v. State of Uttar Pradesh (Civil Appeal No. 4840/2021), (India)
10
Naresh Shridhar Mirajkar v. State of Maharashtra & Anr. (A.I.R. 1967 S.C. 1 ) (india)

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 (Memorandum on Behalf of Appellant)

21. Now, the very question which is open for deliberation and interpretation is that, the
judgment of the Hon’ble High Court assailed is partly in favour of the appellant and
party adverse to him, whereby the adverse findings are impunged herein and the
favouring findings have not been challenged by the respondent in accordance with
law, which squarely covers in the same conspectus as being non-challenged and is
categorically covered by the Division Bench of the Hon’ble Punjab & Haryana High
Court in the judgment passed in the case of Union of India v. Kanhaiyalal Sharma
(A.I.R. 1957 PH 117)11 and thereby, the said finding that the appellant is not liable
for civil defamation has attained finality and the said claim cannot be challenged in
the present petition, because the said finding has not been challenged before the
Hon’ble Court and without assailing the same order/finding and setting-aside the
same, the respondent has no right to get any relief in relation to civil defamation and
therefore in the legal conspectus, the appellant are not liable for civil defamation,
which is founded on the findings of the Hon’ble High Court, which has attained
finality.

[C] Is Richard liable for Civil Defamation considering the merits to the case?

22. It is humbly placed before the Hon’ble Court that even considering the merits of the
case, the appellant is not liable for the civil defamation, because of the purpose that
the essential ingredients to constitute civil defamation is not made out and the entire
factual web in relation to the same is highlighted under paragraph 8 of the moot
proposition, which clearly shows that the publication went through social media
account of the appellant was assertion of truth and justification for his action for
discontinuing the contractual obligations, which were primarily breached by the
respondent are absolute defences to the liability attracted under civil defamation,
though not squarely covered under criminal defamation laws provided u/s. 499 & 500
of the Indian Penal Code, 1860.

11
Union of India v. Kanhaiyalal Sharma (A.I.R. 1957 PH 117), (India)

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 (Memorandum on Behalf of Appellant)

23. Furthermore, the liability to prove the charge was on the respondent, whereby they
could not discharge the burden of preponderance of probabilities because of which the
Hon’ble High Court decided in the favour of the appellant.

24. Therefore, the appellant is not liable for civil defamation.

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 (Memorandum on Behalf of Appellant)

ISSUE 3

Was there a breach of Contract by one of the parties?

25. Indeed, there was breach of the contractual terms and obligations as were entered into
by the rival parties at the behest and instance of the respondents, because of the very
factum that the respondents were responsible for arranging the hospitality and were
endowed with the other event management responsibilities, which included the
arrangements for securing the health and safety of the appellant and being a multi-
national corporation who is well-known for their high-quality services and customer-
focused approach has raised reasonable expectation on the part of the appellant, so as
to get the best facility for his concert, which were denuded and the series of event
happened in Clerden specifically amount to breach of the contractual obligations
owed by the respondents.

26. That, another important factum which is necessary to put forth is that the
administration of Modi Hospital were in the hands of respondent and the relation
between the doctor and the hospital is categorised as that of agent and principal, if the
doctor are the regular employees of the hospital and in some cases that relation may
also amount to that of independent contractor and employer, where the doctor’s are
hired and the hospital doesn’t exercise extended control over them.

27. In the light of the same, the appellant being a Trentland resident and a heavy-metal
vocal artist who has fans all over the world is a V.I.P. who was admitted in the Modi
Hospital where he was not given proper care and the defence that the appellant went
without informing the organisers is baseless and lacks foundation because without
informing the hospital authorities, the discharge certificate could not have been taken
from the hospital and when a V.I.P. is leaving the hospital that too managed by the
respondent who is also the event organisers, then it is futile to understand that they
didn’t knew about the leaving of the appellant to Trentland and they specifically had
knowledge about the exit of the appellant from the Hospital accompanied with the

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 (Memorandum on Behalf of Appellant)

health complications developed and it was the wilful attempt on the part of the
respondents to not provide proper care for the very reasons known to them.

28. More so, the stance of the respondent wherein they have categorically “ASSUMED”
the infection contracted by the appellant to be minor and no follow-up in that respect
of deteriorating health was done by the respondent, clearly shows the malaise on their
part, because of the very reason that the appellant interjected on the point of
scheduling the event in Clerden.

29. It is pertinent to highlight here that, there is categorical differences in the terms of
“PRESUME”, “ASSUME” and “CONCLUSIVE KNOWLEDGE”12, wherein the
respondents being the organisers and administrators of the hospital had clear
knowledge about everything suffered and actions conducted by the appellant, but
nothing was done on their part to safeguard the appellant and non-action coupled with
the factum that the respondent need not to show themselves wrong and had plotted the
entire situation, disregarding the contractual obligations and thereby breaching the
contract entered between the appellant and the respondent.

30. That, no breach of contract been done by the appellant, as after extending the opinion
of changing the event place from Clerden to another country, the appellant wilfully
and voluntarily performed in Clerden and later on developed health issues and when
the respondent’s failed to abide by their contractual obligations, the appellant
rightfully rescinded the contract as per the provisions of section- 73 and 75 of the
Indian Contract Act, 1872.

12
Difference between presume and assume: meaning and use, YOUR DICTIONARY, (Oct. 25, 10:23 AM),
https://grammar.yourdictionary.com/vs/difference-between-presume-and-assume-meaning-and-use.html

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 (Memorandum on Behalf of Appellant)

ISSUE 4

Is either party entitled to compensation for the loss/ harm suffered?

31. Augmenting the arguments in affirmation to this issue, the respondents are liable for
compensating the loss and harm suffered to the appellants in the conspectus of the
provisions of section 73 of the Indian Contract Act, 1872 which is herewith
reproduced for the kind consideration of the Hon’ble Court.

“Section 73. Compensation for loss or damage caused by breach of contract

When a contract has been broken, the party who suffers by such breach is
entitled to receive, from the party who has broken the contract, compensation
for any loss or damage caused to him thereby, which naturally arose in the
usual course of things from such breach, or which the parties knew, when they
made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or
damage sustained by reason of the breach.

Compensation for failure to discharge obligation resembling those created

by contract. When an obligation resembling those created by contract has
been incurred and has not been discharged, any person injured by the failure
to discharge it is entitled to receive the same compensation from the party in
default, as if such person had contracted to discharge it and had broken his
contract.

Explanation. In estimating the loss or damage arising from a breach of

contract, the means which existed of remedying the inconvenience caused by
the non-performance of the contract must be taken into account.”

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 (Memorandum on Behalf of Appellant)

32. Thus, in the light of the above provision coupled with the legal matrix as enunciated
in the landmark case of “Wagon Mound case”13 wherein the Hon’ble Privy Council
has propounded the doctrine of Remoteness of Damages which shall be ascertained by
applying the test of reasonable foreseability and in the light of the same, the appellant
is entitled for special damages to the losses suffered by the actions of the respondents
in relation to the following aspects, which are: -
a. Loss suffered during treatment in Hospital.
b. Loss suffered for anticipated professional association for the said period of the
breached contract which means appellant could have been associated with
other professional work with other contractors.
c. Loss to the quality of voice which is the invaluable property of an artist got
severely damaged and there is no sign of immediate recovery of the said issue.
d. Money spent in pursuing legal proceedings and the mental, physical as well as
emotional agony suffered thereto.

33. Therefore, in the light of the aforesaid decisions and in the light of the celebrated
judgement of this Hon’ble Court passed in the case of Oil and Natural Gas Ltd. v
SAW Pipes Ltd. (2003) 5 SCC 70514, wherein it was held that if the losses appeared
to be reasonably foreseeable then the evidence for such loss actually covered need not
to be adduced before the Court’s of Law for the very purposes of claiming
compensation.

34. Thus, the appellant is entitled for the compensation of the losses and damages as
caused aforesaid by the respondent and the appellant being aggrieved is not liable to
compensate to the respondent.

13
Overseas Tankship (UK) Ltd. v. Morts Dock and Engg. Co. Ltd. (1961) A.C. 388 (United Kingdom)
14
Oil and Natural Gas Ltd. v SAW Pipes Ltd. (2003) 5 S.C.C. 705 (India).

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 (Memorandum on Behalf of Appellant)

PRAYER

Wherefore in the light of the facts presented, issues raised, arguments advanced and
authorities cited, it is humbly prayed that this Hon’ble Court may be pleased to adjudge and
declare that:

a. The impugned judgement of the Hon’ble High Court to the effect adversing the
appellant may kindly be set aside and the respondents be held liable for medical
negligence and breach of contract.
b. The respondents be directed and ordered to pay compensation for the loss and damage
suffered by the appellants due to their actions.
c. Pass any other such order this Hon’ble court may find in interests of justice, equity
and good conscience.

For this act of kindness, the Appellants shall duty bound forever pray.

PLACE: Trentland

Sd./

DATE: 27th October, 2021 (Counsel for the Appellant)

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