UPON THE SUBMISSION TO THE HON’BLE HIGH COURT JUDGE

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS

SUBMITTED BY,

GAUTAM KUMAR G MODANWAL

ROLL NO-36
DIVISION-A

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 TABLE OF CONTENTS

1) LIST OF ABBREVIATIONS USED

2) INDEX OF AUTHORITIES

3) SATAEMENT OF JURISDICTION

4) STATEMENT OF FACTS

5) SATEMENT OF ISSUES

6) SUMMARY ARGUMENTS

7) WRITTEN PLEADINGS

8) PRAYERS

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 LIST OF ABBREVIATIONS USED

¶ Paragrph
Art. Article
Cr. Criminal
Appl. Appeal
w.p. Write Petition

Rev. Revision
Fir First important report
@ At the rate
& And

Scc Supreme Court Case

Air All India reporter
Mr. Mister

Vs. Versus

Uoi Union of India

Hon”al Honorable
Anr. Another

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 Pg. Page
OR”s. Others
Gov. Government

Ccr. Current Criminal report

Ed. Edition
i.l.r Indian law reporter

l.j. Law journal

Re. Reference
Ed. Edition
i.l.r Indian law reporter
l.j Law journal
Re. Reference
Sd/ Singed

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 INDEX OF AUTHORITIES

JUDICIAL DECISIONS

BOOKS REFERRED

• PSA Pillai’s The law of evidence - 25thEdition, LexisNexis

• Ratanlal & Dhirjilal’s Criminal law – 12thEdition, LexisNexis
• K.D. Gaur, Textbook on The Indian Penal Code, 4 th ed. Delhi: Universal
Law Publishing Co. Pvt. Ltd.

• Anoop K. Kaushal’s Medical Negligence and Legal Remedies: Universal

Law Publishing Co. Pvt. Ltd.

STATUES REFERRED

• The Indian Penal Code, 1860 [Act No 45 of 1860]

• The Medical Council Act
• The Consumer Protection Act,

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 WEBSITES
• www.legalservicesindia.com
• www.indiankanoon.org

STATEMENT OF JURISDICTION

The Petitioner has approached this Hon’ble High Court of Allahabad

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
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 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

Page 6

STATEMENT OF FACTS

Ramore Nagar Government hospital in association with Nehthra eye care, a

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.
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 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.

Page 7

STATEMENT OF ISSUES

ISSUE1:

WHETHER THE CASE IS MAINTANABLE?

ISSUE 2
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 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?

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ARGUMENTS ADVANCED

ISSUE1:

WHETHER THE CASE IS MAINTANABLE?

A doctor is not necessarily liable in all cases where an patient has suffered an
injury. This may either be due to fact that he has a valid defence or that he has
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 a valid defence or that he has not breached the duty of care.

Doctor not guilty of negligence, he has acted in accordance with the practice
accepted as proper by reasonable eye of medical professionals.

Failure of an operation and side effects are not negligence. The term
negligence is defined as the absence or lack of care that a reasonable person
should have taken in the circumstances of the case. In the allegation of
negligence in a case of wrist drop, the following observations were made.
Nothing has been mentioned in the complaint or in the grounds of appeal
about the type of care desired from the doctor in which he failed. It is not said
anywhere what type of negligence was done during the course of the
operation. Nerves may be cut down at the time of operation and mere cutting
of a nerve does not amount to negligence. It is not said that it has been
deliberately done. To the contrary it is also not said that the nerves were cut
in the operation and it was not cut at the time of the accident. No expert
evidence whatsoever has been produced. Only the report of the Chief Medical
Officer of Haridwar has been produced wherein it said that the patient is a
case of post-traumatic wrist drop. It is not said that it is due to any operation
or the negligence of the doctor. The mere allegation will not make out a case
of negligence, unless it is proved by reliable evidence and is supported by
expert evidence. It is true that the operation has been performed. It is also

true that the Complainant has many expenses but unless the negligence of the
doctor is proved, she is not entitled to any compensation.

Hence it is proved not maintainable.

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 ISSUE 2

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 WHETHER THE GOVERNMENT OF RAMORE NAGAR HELD LIABLE FOR
DEFICIENCY OF SERVICE?

Hospital has filed photocopy of Complained, there is not any complained about
irrigation of eye .
It is against the Naina village people.

ISSUE 3

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 WHETHER NEHTHRA HOSPITAL AND BSC NGO IS LIABLE FOR DEFICIENCY
OF SERVICE

There are not 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 not guilty professionals, it functions as a deterrent to
future negligent behavior.

SUBSTANTIVE PRINCIPLES IN LAW:

MEDICAL NEGLIGENCE
Batra Hospital & Medical Research Centre & Ors.1 as under:“ Negligence.
– Duties owed to patient. A person who holdshimself out as ready to give
medical advice or treatment impliedly undertakes that he is possessed of
skill and knowledge for the purpose. Such a person, whether he is a
registered medical practitioner or not, who is consulted by a patient,
owes him certain duties, namely, a duty of care in deciding whether to
undertake the case; a duty deciding what treatment to give; and a duty of
care in hisadministration of that treatment. A breach of any of these
duties will support an action for negligence by the patient”

. However, the action of the Doctors and staff in the Government Hospital at
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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 ISSUE 4

WHETHER FREE SERVICE 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 consideration35.

in the case of Indian Medical Association vs V.P. Shantha & Ors on 13
November, 1995 Equivalent citations: 1996 AIR 550, 1995 SCC (6) 651, it
was held 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
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 (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.

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
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

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 ISSUE 5

WHETHER THE PATIENTS ARE ENTITLED TO COMPENSATION?

Hence the issue no. 1 to 4 against the petitioner so petitioner is not entitle to
compensation.

PRAYER

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It is humbly prayed this Hon’ble court discharge the present respondent from all
the charges.

And further pass any order that the Hon’ble court may deem fit. And for this act of
kindness, the counsel on behalf of the respondent, duty bound shall forever pray.

ALL OF WHICH RESPECTIVELY SUBMIITED

_______________________________________________
Sd/-

COUNSELS FOR THE RESPONDENT

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