UNIVERSITY OF PETROLEUM AND ENERGY

STUDIES

MOOT COURT MEMORIAL

UNDER SUPERVISION OF Mrs. Gagandeep kaur

Submitted by:
Anamika ( 9)
Arpit gupta (22)
Deepali Khandelwal (34)
Gruleen kaur (46)

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Memorandum for Respondent
 BEFORE THE

HONBLE DISTRICT COURT OF MADHYA PARDESH

SHIVA BAI... COMPLAINANT

V.

DR. P. JAMJHUTE RESPONDENT

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Memorandum for Respondent
 TABLE OF CONTENTS

LIST OF ABBREVIATIONSINDEX OF AUTHORITIES

Cases Referred

Statutes Referred

Books Referred

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

ISSUES INVOLVED

SUMMARY OF ARGUMENTS

ARGUMENTS ADVANCED

PRAYER

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Memorandum for Respondent
 LIST OF ABBREVIATIONS

1. AIR All India Reporter

2. ARTArticle

3. HCHigh Court

4. HONBLE Honorable

5. LTD Limited

6. HCHigh Court

7. SCCSupreme Court Cases

8. SECSection

9. U/SUnder Section

10. VOLVolume

11. V Versus

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Memorandum for Respondent
 INDEX OF AUTHORITIES

STATUES REFERED

INDIAN CONTRACT ACT 1872

LAW OF TORTS

BOOKS REFERRED

Pullock and Mulla the indian contract act and specific relief

act
Ratanlal &DhirajlalThe Law of Torts 26th edition
Avatar Singh The Indian Contract Act 1872 and the specific

relief act

LEGAL DATABASES

LEXIS NEXIS
SCC ONLINE
WEST LAW
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Memorandum for Respondent
 MANUPATRA

CASES REFERRED
Savita garg v. National heart institute, (2004)8 SSC56
Nizams institute of medical sciences v. Prasanth s. dhananka
C.P. Shreekumar (dr.) v. S. Ramananj

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Memorandum for Respondent
 STATEMENT OF JURISDICTION

The complainant humbly states the jurisdiction as follows:

Section1(g) "deficiency" means any fault, imperfection, shortcoming

or inadequacy in the quality, nature and manner of performance which
is required to be maintained by or under any law for the time being in
force or has been undertaken to be performed by a person in
pursuance of a contract or otherwise in relation to any service.
(o) "service" means service of any description which is made available
to potential users and includes, but not limited to, 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 the
rendering of any service free of charge or under a contract of personal
service;
(oo) Spurious goods and services mean such goods and
services which are claimed to be genuine but they are actually
not so;
Section 15 Appeal. Any person aggrieved by an order made by the
District Forum may prefer an appeal against such order to the State
Commission within a period of thirty days from the date of the order, in
such form and manner as may be prescribed:
Provided that the State Commission may entertain an appeal after the
expiry of the said period of thirty days if it is satisfied that there was
sufficient cause for not finding it within that period.
Provided further that no appeal by a person, who is required to
pay any amount in terms of an order of the District Forum, shall
be entertained by the State Commission unless the appellant has
deposited in the prescribed manner fifty per cent. of that amount
or twenty-five thousand rupees, whichever is less:

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Memorandum for Respondent
Section 17 Jurisdiction of the State Commission. (1) Subject to
the other provisions of this Act, the State Commission shall have
jurisdiction
(a) To entertain
(i) Complaints where the value of the goods or services and
compensation, if any, claimed exceeds rupees twenty lakhs but does
not exceed rupees one crore; and
(ii) Appeal against the orders of any District Forum within the State;
and
(b) to call for the records and pass appropriate orders in any con-
sumer dispute which is pending before or has been decided by any
District Forum within the State, where it appears to the State
Commission that such District Forum has exercised a jurisdiction not
vested in it by law, or has failed to exercise a jurisdiction so vested or
has acted in exercise of its jurisdiction illegally or with material
irregularity.
(2) A complaint shall be instituted in a State Commission within
the limits of whose jurisdiction,
(a) the opposite party or each of the opposite parties, where
there are more than one, at the time of the institution of the
complaint, actually and voluntarily resides or carries on business
or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one,
at the time of the institution of the complaint, actually and
voluntarily resides, or carries on business or has a branch office
or personally works for gain, provided that in such case either the
permission of the State Commission is given or the opposite
parties who do not reside or carry on business or have a branch
office or personally work for gain, as the case may be, acquiesce
in such institution; or
(c) The cause of action, wholly or in part, arises.
17A. Transfer of cases. - On the application of the complainant or
of its own motion, the State Commission may, at any stage of the
proceeding, transfer any complaint pending before the District

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Memorandum for Respondent
 Forum to another District Forum within the State if the interest
of justice so requires.
17B. Circuit Benches.-The State Commission shall ordinarily
function in the State Capital but may perform its functions at
such other place as the State Government may, in consultation
with the State Commission, notify in the Official Gazette, from
time to time.

l9. Appeals.Any person aggrieved by an order made by the

State Commission in exercise of its powers conferred by sub-
clause (i) of clause (a) of section 17 may prefer an appeal
against such order to the National Commission within a period of
thirty days from the date of the order in such form and manner as
may be prescribed:
Provided that the National Commission may entertain an appeal
after the expiry of the said period of thirty days if it is satisfied
that there was sufficient cause for not filing it within that period.
Provided further that no appeal by a person, who is required
to pay any amount in terms of an order of the State
Commission, shall be entertained by the National
Commission unless the appellant has deposited in the
prescribed manner fifty per cent. of the amount or rupees
thirty-five thousand, whichever is less:
19A. Hearing of Appeal - An appeal filed before the State
Commission or the National Commission shall be heard as
expeditiously as possible and an endeavor shall be made to
finally dispose of the appeal within a period of ninety days from
the date of its admission:
Provided that no adjournment shall be ordinarily granted by
the State Commission or the National Commission, as the
case may be, unless sufficient cause is shown and the
reasons for grant of adjournment have been recorded in
writing by such Commission:
Provided further that the State Commission or the National
Commission, as the case may be, shall make such orders as

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Memorandum for Respondent
 to the costs occasioned by the adjournment as may be
provided in the regulations made under this Act.
Provided also that in the event of an appeal being disposed
of after the period so specified, the State Commission or,
the National Commission, as the case may be, shall record
in writing the reasons for the same at the time of disposing
of the said appeal.
Section 21 -Jurisdiction of the National Commission. Subject
to the other provisions of this Act, the National Commission shall have
jurisdiction
(a) To entertain
(i) Complaints where the value of the goods or services and
compensation, if any, claimed exceeds rupees one crore; and
(ii) Appeals against the orders of any State Commission; and
(b) to call for the records and pass appropriate orders in any con-
sumer dispute which is pending before or has been decided by any
State Commission where it appears to the National Commission that
such State Commission has exercised a jurisdiction not vested in it by
law, or has failed to exercise a jurisdiction so vested, or has acted in
the exercise of its jurisdiction illegally or with material irregularity.

STATEMENT OF FACTS

The facts of the case according to the Respondent are that in

November, 2000 after undergoing treatment in Geeta Hospital at
Badnagar, she took further treatment in Getwell Hospital under the
Petitioner.

Since her problem persisted she was advised to undergo a

hysterectomy which she underwent in Petitioners Hospital. 10 days

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Memorandum for Respondent
after the operation, even though her medical condition was very bad
and before the stitches were removed, she was discharged by the
Petitioner. When she again went back to the hospital after a few days
she was advised to come after two months since Dr. Jamjhute had
gone abroad. Having no other option, she sought treatment in the Life
Line Hospital where an operation was performed and it was discovered
that half a meter of sponge has been left in her stomach during the
hysterectomy It was because of this that her condition had
deteriorated and her intestines had developed gangrene and there was
pus formation. To save her life, a part of her intestine was removed
and she had to incur a great deal of pain as well as expenditure on her
treatment.

Aggrieved by the negligence and deficiency in service of the

Petitioner, Respondent approached the District Forum seeking
compensation of Rs.4,85,835/- to cover the expenditure incurred in the
three hospitals where she was treated, agricultural losses, mental
harassment and expenditure on future treatment.

The Petitioner, on the other hand, has totally denied the contentions of
the Respondent. According to the Petitioner, Respondent had
approached him at Getwell Hospital on 09.11.2000 with complaints of
pus formation, fever and vomiting. She was treated for these and there
was no occasion to perform any abdominal operation nor was any
other operation performed on the Respondent. The Respondent was
discharged on 28.11.2000 after her condition improved. It later came
to be known when she was operated upon in Life Line Hospital those
Respondents medical problems were due to negligence of the doctors
at Geeta Hospital who had left the sponge in her abdomen during the
hysterectomy operation prior to her admission in the Petitioners
hospital. All these facts were recorded by the Life Line Hospital in the
Respondents medical case history when she underwent a second
corrective surgery. Thus, there was no deficiency or medical
negligence on the part of the Petitioner.
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Memorandum for Respondent
The District Forum after hearing both parties and on the basis of the
medical certificates and other relevant evidence produced before it,
concluded that no case was made out against the Petitioner and
dismissed the complaint.

Aggrieved by this, Respondent filed an appeal before the State

Commission. The State Commission upheld the finding of the District
Forum that the hysterectomy was not done in Getwell Hospital but
was done in Geeta Hospital, Badnagar.

However, the State Commission partly allowed the appeal on the

ground that the Petitioner failed in providing due care which was
expected that a doctor should provide because despite treatment her
medical problems deteriorated. It, therefore, directed the Petitioner to
pay the appellant a sum of Rs.25,000/- within 60 days of the
communication of the order failing which it shall carry 6% interest per
annum as well as Rs.1,000/- as costs.

Aggrieved by this order, the Petitioner has come in revision before this
Commission.

The Petitioner was represented by his counsel, Shri Achal Sirohi. Shri
Rahul Malhotra, counsel appeared as amicus curie on behalf of the
Respondent.

Counsel for Petitioner contended that the allegation of the Respondent

that hysterectomy was performed at Get well Hospital and a sponge
left in her abdomen in that hospital was rightly not believed by the
learned fora below on the basis of credible evidence on record
including medical reports which included the discharge slip from
Getwell Hospital and the medical case sheet from Life Line Hospital.
During her 19 days stay in the Petitioners hospital she was given
proper treatment for her medical problems and this included re-
suturing the infected stitches. She was discharged only when her

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Memorandum for Respondent
condition improved and pus formation had ceased. It was unfortunate
that the hospital where the medical negligence had actually occurred
was not impleaded by the Respondent and who instead tried to falsely
implicate the Petitioner.

The amicus curie on behalf of the Respondent however, reiterated that

the hysterectomy was in fact conducted not in Geeta Hospital but in
the Petitioners hospital and because of the negligence and deficiency
in service on the part of the doctor in that hospital she developed
serious complications and had to seek treatment in another hospital
which confirmed that there was a foreign object left in her abdomen
leading to life threatening complications.

We have considered the submissions of the two counsels and also the
evidence on record.

We accept the finding of the learned fora below which is a finding of

fact based on credible evidence that the hysterectomy was performed
in Geeta Hospital in Badnagar and not in Getwell Hospital as has been
contended by the Respondent. As stated earlier, this is clear not only
from the discharge slip but also the medical records of Life Line
Hospital which was obviously provided to that hospital by the
Respondent herself. This specific finding of the both the District Forum
and the State Commission has also not been challenged by the
Respondent since she has not come in revision before us in this
respect.

The question that now remains to be decided is whether the Petitioner

failed in providing due care which the Respondent should have
received and to this extent was there any deficiency in service on the
part of the Petitioner. The State Commission has reached this
conclusion on the grounds that the complete diagnostic check-up was
not done and the Petitioner was therefore, not able to correctly

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Memorandum for Respondent
diagnose the problem. There also appears to be some haste in
discharging the patient from the hospital.

It is established that the Respondent remained in the Petitioners

hospital for 19 days and various steps were taken to treat her
including re-suturing her stitches under general anesthesia where pus
information had occurred. Other tests were also conducted including
blood test etc. and necessary medicines were prescribed. These facts
taken in their totality are not indicative of any callousness or
indifferent attitude on the part of the Petitioner. Leaving a foreign
object in the abdomen during the surgery is a rare occurrence and one
of extreme negligence and therefore, it is not unusual that this was
not detected by the Petitioner. At the most this could be a reflection
on his professional competence but no malafide or deficiency can be
attributed to him in this respect as also there is no case of either lack
of sincerity or wrong treatment.

Keeping these facts in view, we are not convinced that the Respondent
was not given due care by the Petitioner during her 19 days stay in
Getwell Hospital. We, therefore, do not agree with the finding of the
State Commission that the Petitioner failed to provide due care which
the Respondent should have received and therefore set aside the order
of the State Commission directing the Petitioner to pay a sum of
Rs.25,000/- to the Respondent. The revision petition is allowed with no
order as to costs.

ISSUES INVOLVED

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Memorandum for Respondent
 ISSUE 1: Whether Dr. P. Jamjhute is accountable for medical

negligence?

ISSUE 2: Whether there was a fiduciary relationship between

the complainant and respondent?

ISSUE 3: Whether there was a breach of contract?

STATEMENT OF ARGUMENT

ISSUE I : whether dr. Jamjhute is liable for medical negligence or not ?

Dr. Jamjhute is liable for his negligence as he went to abroad before

giving whole service to the shiva bai

Issue II whether there was a breach of fiduciary relationship ?

Yes because there was a breach of trust.

ISSUE 3 whether there was a breach of contract ?

Yes there was a breach of contract . There was a contract to give

services to the Shiva bai .

ARGUMENTS ADVANCED

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Memorandum for Respondent
The appellant is the wife of one deceased A.K.Garg who was admitted
to the National Heart Institute (hereinafter referred to as 'the
Institute') for medical treatment and because of the negligence of the
doctors of the Institute he could not get proper medical treatment and
ultimately he died. The deceased A.K.Garg was employed as Electrical
Engineer in I.D.P.L., Vir Bhadra (Rishikesh). The deceased was drawing
a salary of Rs.8000/- per month at the time of his death. He left behind
his family members namely.

II

2. The respondent Prasant S. Dhananka ( hereinafter called the

"complainant"), then 20 years of age and a student of Engineering,
complaining of recurring fever was examined in the hospital run by the
Bharat Heavy Electricals Limited as his father was employed with that
Organisation. As the cause of the fever could not be identified, he
visited the appellant - Nizam Institute of Medical Sciences (NIMS) on
9th September, 1990 in the evening OPD. He was examined by one Dr.
Ashish Boghani, a Chest and Tuberculosis Specialist and was advised
to undergo on ultrasound guided biopsy for Neurofibroma, an innocent
tumour, after an X-ray revealed a mass in the left hemithorax with
posterior mediastinal erosion of the left 2nd, 3rd and 4th ribs. As
several attempts at Fine Needle Aspiration Cytology (FNAC) under
ultra sound guidance did not give any conclusive evidence as to the
nature of the mass detected in the X-ray examination, the complainant
was referred (on 5th October, 1990) for further examination to Dr. U.N.
Das, who suggested another attempt at the same procedure but under
C.T. guidance.
III

This judgment will dispose of C.A. No.6168 of 2008, and

C.A.No.6167/2008 as they arise out of the same order. The facts are
being taken from C.A. No.6168 of 2008.

These appeals are directed against the order of the National

Consumer Disputes Redressal Commission (hereinafter called the
"Commission") whereby a sum of Rs.5.50 Lac along with interest on a
part of the aforesaid amount and costs of Rs.25000/- has been

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Memorandum for Respondent
awarded to the complainant - respondent. The facts leading to this
appeal are as under

PRAYER

In the light of the issues raised, arguments advanced and authorities

cited, may this Honble Court be pleased to pass the following:

1. Allow compensation of Rs. 15,00,000/- .

2. To suspend the license of Dr. Jamjhute for one year.
3. To allow cost.

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Memorandum for Respondent
 AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity
and Good Conscience.

And for this, the Complainant as in duty bound, shall humbly pray.

Sd /- COUNSEL FOR THE COMPLAINANT.

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Memorandum for Respondent