TEAM CODE: TC-XXXVI

4TH INTRA UNIVERSITY MOOT COURT COMPETITION, 2020

BEFORE

THE HON’BLE SUPREME COURT OF

INDIA

SPECIAL LEAVE PETITION (SLP No. 254/2020)

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

IN THE MATTER OF:

VIKRANT MATHUR…………………………………………PETITIONER

VERSUS

QUICK HEAL HOSPITAL & ORS………..………………..RESPONDENT

(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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 TABLE OF CONTENTS

List of abbreviations……………………………………………3
Index of authorities……………………………………………..4
Statement of Jurisdiction……………………………………….5
Statement of facts………………………………………………6
Statement of Issues……………………………………………..9
Statement of Argument………………………………...……...10
Argument Advanced…………………………………………..11
Prayer………………………………………………………….17

(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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 LIST OF ABBREVATIONS

& And
Vol. Volume
AIR All India Reporter
Art. Article
FIR First Information
Report
Cri. Criminal
Hon’ble Honorable
No. Number
SC Supreme Court
SSC Supreme Court
Cases
SCR Supreme Court
Reports
Supp Supplementary
UOI Union of India
V. Versus
CPC Civil Procedure
Code
Sec Section
Co. Company
Ltd. Limited
Rs. Rupees
www World Wide Web

(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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 INDEX OF AUTHORITIES

LIST OF BOOKS
1. G.P. Singh, (Rev.), Ratanlal &Dhirajlal, The Law of Torts (24th ed.2004).
2. Ratanlal & Dhirajlal, The Law of Torts, Lexis Nexis, (26th ed., 2013)
3. Laxminath and M. Sridhar, Ramaswamy Iyer’s The Law of Torts, (10th ed., 2007).
4. W.V.H. Rogers, Winfield &Jolowicz on Tort 17th ed., 2006).
5. R.F.V. Heuston and R.A. Buckley, Salmond & Heuston on the Law of Torts (20th ed.,1992).

STATUTES
1. The Constitution of India, 1950.
2. The Consumer Protection Act, 1986.
3. The Indian Contracts Act, 1872.

LIST OF WEBSITES
1. www.manupatra.com
2. www.lexisnexis
3. www.westlawindia.com
4. www.ssconline.com

LIST OF CASES
1. Indian Medical Association v. V.P. Shantha, 1995 (6) SSC 651.
2. Heaven v. Pender, (1883) 11 Q.B.D 503.
3. Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.
4. Bolam v. Friern Barnet hospital Management Committee, (1957) 1 W.L.R 582.
5. Hucks v. Cole, (1993) Med LR 393.
6. Yewens v. Noakes, (1881) 6 Q.B.D 530.
7. Beard v. London General Omnibus Company (1900) 2 QB 530.

(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the jurisdiction to hear and decide upon the appeal
made by the appellant by the virtue of the Special Leave Petition as stated in Article 136 of The
Constitution of India under the Civil Appellate Jurisdiction of Supreme Court.

Article 136 in The Constitution of India 1949:

Article 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, and sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the Armed
Forces.

(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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 STATEMENT OF FACTS

BACKGROUND

1. The end of the spouse of the appeallant has brought about the legitimate procedures being
started by the litigant on a conviction that the reason for her passing was clinical carelessness.

2. Late Mrs. Neha was the spouse of appealing party who had a convoluted clinical history.
Prior she was on diabetic alarm, and as of late determined to have esophageal malignancy and
hypertension. She was under the supervison of Dr. Shalabh Saxena.

3. Neha accepting her medicines as endorsed after supper. From that point, at around 12 PM,
she grumbled to Vikrant of extreme nervousness and suffocation. Since Dr. Shalabh knew
about Neha's medcal history. Vikram reached Dr. Shalabh on courier application. Dr. Shalabh
was abroad for 15 days, yet he recommended paracetamol and encouraged to go for assessment.
Subsequent to taking the recommended medication of Doctor Shalabh, Neha felt relaxed.

4. Next morning, she was conceded in a private clinic specifically Quick Heal Super Specialty
Hospital (Respondent No. 1) There she was gone to by Doctor Sivakant Jhunjhunwala
(Respondent No. 2). She was determined to have chills and fever and nasal feed tube was
embedded around the same time by Dr. Anurag (Respondent No. 3) for certain associated tests
endorsed.

FACTS OF THE CASE

5. One of the tests was a Complete Blood Count Report, which found that the WBC check high,
characteristic of disease. She had likewise having fever of 102 degrees Fahrenheit, and her
clinical treatment started with intravenous organization of infusion Magnex of 1.5 mg.
According to the clinical reports, the cannula utilized for intravenous treatment quit working
and (Respondent No.3) endorsed a further anti-toxin tablet, Polypod (Cefpodoxime) to be
orally managed through nasal cylinder.

(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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6. The patient was then released. At this stage additionally her WBC tally was high. She was
endorsed to proceed with her medicine for 15 days post release, which according to Vikrant
was controlled to her.

7. The spouse fell and was admitted to a close by a General Hospital. Specialist Vincent Mattu
managed Neha. He told that the excess of anti-toxin tablet, Polypod (Cefpodoxime), was the
explanation of Neha's deadly imploding. She was not analyzed appropriately in the past
emergency clinic. There she was put in a coma ventilation framework, her wellbeing proceeded
to crumble and she at last capitulated to her disease.

8. After the downfall of his better half the current litigant subsequent to examining for certain
specialists, recorded a protest with the Medical Council of India. He at that point moved toward
the State Consumer Commission by arguing the emergency clinic were obligated for clinical
carelessness.

CONTENTIONS OF BOTH THE PARTIES

9.The appealing party contended that the way wherein clinical therapy was managed to Neha
and her resulting release from the Quick Heal Hospital was improper and ineffectual
prescription; the untimely release of the expired notwithstanding her condition justifying
therapy in the ICU; and that the oral organization of Polypod anti-microbial, in spite of her
basic condition, which really required intravenous organization of the medication shows net
clinical carelessness on piece of Hospital specialists.

10. The respondents were of the view that when the patient was released, she was afebrile, her
vitals were typical and she was very much hydrated, with no disease in her chest or urinary
parcel. She was expressed to be clinically steady and that is the reason she was so released with
legitimate clinical solutions for the following 15 days.

DECISION OF STATE AND NATIONAL CONSUMER FORUM

11. The State Commission ruled for the appealing party and coordinated a pay of Rs.15 lakh
and expenses of Rs.51,000/ - to be paid to spouse of the perished. Distressed by the
(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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said request of the State Commission, the respondents favored an allure before the National
Consumer Disputes Redressal Commission (NCDRC), which absolved the respondents from
all ascriptions of Medical Negligence.

THE PRESENT PETITION

12. Oppressed by the choice of NCDRC the current litigant favored an allure in the Supreme
Court. Leave has been conceded. This is the way the issue precedes this Hon'ble Court.

(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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 STATEMENT OF ISSUES

ISSUE 1: WHETHER THE DOCTORS ARE NEGLIGENT

ISSUE 2: WHETHER THE HOSPITAL IS VICARIOUSLY LIABLE

ISSUE 3: WHETHER THE COMPENSATION AWARDED SHOULD BE SET ASIDE

(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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 SUMMARY OF ARGUMENTS

ISSUE 1. WHETHER THE DOCTORS ARE NEGLIGENT

It is submissively presented that for an individual to be careless, his demonstrations ought not
be that of a reasonable man. Notwithstanding, in the current case, the Respondents had acted
in a sensible way and had taken legitimate consideration of the expired. Their demonstrations
were in consonance of the demonstrations of a sensible and reasonable expert and accordingly,
they can't be liable for negligence.

ISSUE 2. WHETHER THE HOSPITAL IS VICARIOUSLY LIABLE

It is submissively presented that the Doctors are the worker of the Hospital and the work done
by them were finished over the span of business. The Hospital authority isn't subject for the
carelessness of expert men as the slip-up was with respect to the Petitioner as they didn't
illuminate the Doctors about the past things and conditions about which Dr. Salabh Saxena was
aware with.

ISSUE 3. WHETHER THE COMPENSATION AWARDED SHOULD BE SET ASIDE

The council granted pay adding up to Rs. 15,00,000 to Petitioner and Rs. 51,000 as cost. The
remuneration granted to them was horribly deficient in contrast with the torment and enduring
they had and should experience later on. The Tribunal didn't consider different heads under
financial and non-monetary harms cautiously.

(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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 ARGUMENTS ADVANCED

ISSUE 1. WHETHER THE DOCTORS ARE NEGLIGENT

A doctor should not be held negligent simply because something goes wrong. He should not
be held liable for mischance and / or for taking one choice out of two or favouring one school
rather than another in choosing as to what treatment is to be given to patient. He is only liable
when he falls below the standard of reasonable competent practitioner with equal skills. The
standard of reasonable care is a flexible criterion capable of setting the boundaries of legal
liability of the professionals depending on the duties founded on principles of torts or contract.
The ‘Negligence’ is not an absolute term, but is a relative one; it is rather a comparative term.
No absolute standard can be fixed and no mathematically exact formula can be laid down by
which negligence or lack of it can be infallibly measured in a given case. What constitutes
negligence varies under different conditions and in determining whether negligence exist in a
particular case, all the attending and surrounding facts and circumstances have to be taken into
account.

It is submissively presented that for bringing a demonstration under the meaning of negligence,
it should be demonstrated that the denounced neglected to act with appropriate consideration
and alert. Nonetheless, in the current case, the Respondents did all that was important and that
would have been performed by whatever other judicious doctor, when placed in that
circumstance.

The law, similar to medication, is an inexact science. One can't foresee with sureness a result
of numerous cases. It relies upon the specific realities and conditions of the case, and
furthermore the individual thoughts of the Judge concerned who is hearing the situation. Where
you get a circumstance, which includes the utilization of some unique aptitude or fitness, at
that point the test with respect to if there has been carelessness isn't the trial of the man, since
he lacks this exceptional expertise. The test is the norm of the standard talented man practicing
and purporting to have that uncommon aptitude. A man need not have the most noteworthy
master ability. It is grounded law that it is adequate on the off chance that he practices the

(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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conventional expertise of a common skilled man practicing that specific Article. 1

Negligence is an oversight to accomplish something which a sensible man guided upon the
contemplations which usually direct lead of human issues would do or accomplishing
something which a judicious and sensible man would not do.2

In the law of Negligence, any errand which is needed to be performed with an uncommon
ability would for the most part be conceded or embraced to be performed just if the individual
has the imperative expertise for playing out that task. A doctor would not guarantee the patient
of full recuperation for each situation. A specialist can't and doesn't ensure that the consequence
of medical procedure would constantly be valuable, substantially less to the degree of 100%
for the individual worked on. The solitary affirmation which a particularly expert can give or
can be perceived to have given by suggestion is that he is equipped with the essential aptitude
in that part of calling which he is rehearsing and keeping in mind that endeavor the exhibition
of the undertaking depended to him, he would practice his expertise with sensible ability. This
is all, what the individual moving toward the expert can anticipate. Decided by this norm, an
expert might be held subject for carelessness on one of two discoveries:
1.Either he was not had of the imperative ability which he purported to have had, or,
2.He didn't work out, with sensible capability in the given case, the ability which he had.

The norm to be applied for judging, if the individual charged has been careless, would be that
of a customary equipped individual practicing standard aptitude in that calling. It isn't essential
for each expert to have the most significant level of mastery in that branch which he practices.

Essentially on the grounds that a patient has not well reacted to a therapy given by a specialist
or a medical procedure has fizzled, the specialist can't be held straightway subject for clinical
carelessness by applying the teaching of res ipsa loquitur. No reasonable expert would
purposefully submit a demonstration or exclusion which would bring about damage or injury
to the patient since the expert standing of the expert would be in question. A solitary
disappointment may cost him dear in his pass. At the point when a patient kicks the bucket or

1
Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582.
2
Prafulla Kumar Rout v. State of Orissa, 1995 CrLJ 1277.

(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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endures some accident, there is a propensity to reprimand the specialist for this. Things have
turned out badly and, accordingly, someone should be rebuffed for it. In any case, it is notable
that even the best experts, what to state of the normal expert, some of the time have
disappointments.

A specialist isn't careless, in the event that he is acting as per a training acknowledged as
appropriate by a sensible assortment of clinical men gifted in that specific workmanship. He
isn't careless just in light of the fact that there is an assortment of such assessment that takes an
opposite view.

On account of Indian Medical Association v. V.P. Shantha,3 the hon'ble Supreme Court saw
that, " In the matter of expert risk callings contrast from different occupations for the
explanation that callings work in circles where achievement can't be accomplished for each
situation and regularly achievement or disappointment relies on variables past the expert man's
control. " The law believes those damaging demonstrations to be chargeable, by and large,
which a sensibly judicious man would anticipate as being equipped for gainful of injury.

Likewise, the offended party owed an obligation of care in the moment case. This is
additionally upheld by the judgment on account of Heaven v. Pender,4 that says, "at whatever
point one individual is by conditions put in such a situation concerning another that everybody
of standard sense who thought would on the double perceive that in the event that he didn't
utilize normal consideration and ability in his own direct with respect to those conditions, he
would make risk of injury the individual or property of the other, an obligation emerges to
utilize customary consideration and aptitude to dodge such peril".

The contention is additionally fortified by the judgment of the Apex court in the Jacob Mathew
v. Territory of Punjab,5 that "Mishap over the span of clinical or careful treatment has a more
extensive significance. Commonly, a mishap implies an unintended and unexpected damaging
event; something that doesn't happen in the standard course of occasions or that couldn't be

3
1995 (6) SCC 651.
4
(1883) 11 Q.B.D 503.
5
(2005) 6 SCC 1.
(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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sensibly envisioned. Care must be taken to see that the aftereffect of a mishap which is
exculpatory may not convince the human brain to mistake it for the outcome of carelessness".
This case is additionally upheld by the trial of carelessness under the predefined set of activities
of Bolam test which was organized on account of Bolam v. Friern Barnet Hospital
Management Committee,6 Bolam test expresses that "If a specialist arrives at the norm of a
dependable assemblage of clinical assessment, he isn't careless", which is valid in the given
case as the norm of care gave was generally excellent and of a respectable status.

Additionally, the instance of Hucks v. Cole,7 it was expressed that clinical specialist would be
subject just when his direct fell beneath the principles of a sensibly equipped expert in his field
such a lot of that his lead may be meriting reproach or reprehensible.

The norm of care must be decided in the light of information accessible at the hour of the
episode and not at the date of the preliminary. It is appropriate to take note of that in the current
case, the level of sensible consideration stretched out to the directing of the essential infusions
to the patient, which was properly satisfied by the Respondents. The reality of the serious and
shocking response of the prescription, by the expired couldn't have been sensibly predicted by
any reasonable specialist as there were no noticeable finishes paperwork for the equivalent and
in this manner, carelessness on piece of the Respondents can't be demonstrated.

ISSUE 2. WHETHER THE HOSPITAL IS VICARIOUSLY LIABLE

It is unassumingly submitted under the watchful eye of the court that there lies no justification
for vicarious obligation of the clinic for the activities of the specialists as they were not under
direct control of the Hospital. Chronicled tests revolved around discovering control between
an alleged manager and a worker, in a type of expert and worker relationship.

The roots for such a test can be found in Yewens v Noakes8, where Bramwell LJ expressed that:
"a worker is an individual who is dependent upon the order of his lord with respect to the way
in which he will take care of his job. " The control test successfully forced obligation where a

6
(1957) 1 WLR 582.
7
(1993) Med LR 393.
8
(1881) 6 Q.B.D 530.
(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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business directed every what work was to be done, and how it was to be finished. This is
suitably appropriate for circumstances where exact guidelines are given by a business; it can
plainly be seen that the business is the causal connection for any mischief which follows. In
the event that then again, a business doesn't decide how a demonstration ought to be done, at
that point the relationship would rather be one of manager and self-employed entity. This
qualification was clarified by Slesser LJ: "It is grounded when in doubt of English law that a
business isn't obligated for the demonstrations of his self-employed entity similarly as he is for
the demonstrations of his workers or specialists, despite the fact that these demonstrations are
done in completing the work for his advantage under the agreement. The assurance whether
the genuine transgressor is a worker or specialist from one perspective or a self-employed entity
on the other relies upon whether the business figures out what can anyone does, yet holds the
control of the real exhibition, where case the practitioner is a worker or specialist; however, on
the off chance that the business, while recommending the work to be done, leaves the way of
doing it to the control of the practitioner, the last is a self-employed entity."

Hence it is plainly apparent that the way of managing his job was left to his will and was not
meddled with, this demonstrates that he was not a representative of the litigant. Subsequently
this contention additionally fortifies the point that his activities can't make the litigant
vicariously obligated.

It is likewise upheld by the judgment that stated, "The law is settled that an expert is vicariously
obligated for the demonstrations of his workers acting throughout business. Except if the
demonstration is done over the span of work, the worker's demonstration doesn't make the
expert subject".

This is additionally clarified on account of Beard v London General Omnibus Company,9 in

which the transport conductor drove the transport, however the transport met with a mishap.
The adjudicator announced that the conductor was not working as indicated by the conditions
of his course of business and consequently the transport organization was not held at risk for
his activities.

9
(1900) 2 Q B 530.
(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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Hence from the above stated arguments it is clearly evident that the defendant cannot be held
vicariously liable for the acts of the doctors.

ISSUE 3. WHETHER THE COMPENSATION AWARDED SHOULD BE SET ASIDE

It is modestly put to the Honorable Court that the pay granted by the council ought to be
dropped by the Court because of its treacherous nature. The board had expressed different
reasons demonstrating that there was no carelessness with respect to the respondents and in
actuality, the appellants alone are answerable for the mishap caused. Accordingly, there is no
help for the pay to be maintained by the Court.

In arguendo, if the supposed carelessness is demonstrated on piece of the respondents, the

Honorable Court ought to decrease the measure of remuneration. The pay granted to the
appellants are horribly unfair to the respondents and Court ought to do equity to the respondents
and in the event that not drop, at that point diminish the measure of remuneration.

Consequently, it is unassumingly submitted to the Court that the choice taken by the council
ought to be switched and the pay granted ought to be dropped.

(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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 PRAYER

Wherefore in the light of the realities expressed, contentions progressed, focuses raised
and the specialists referred to,

1. There had been no carelessness with respect to the Respondent,

2. The state commission blundered in allowing remuneration to Appellant,

3. Put a stay on the judgment of the State Commission,

4. Maintain the judgment of NCDRC.

What's more, pass whatever other request which this Hon'ble Court may consider fit in
the light of equity, value and great heart.

What's more, for this thoughtful gesture of your lordship the applicant will be compelled
by a solemn obligation as ever pray.

(MEMORANDUM ON BEHALF OF THE RESPONDENT)

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