TC-52

‘NEOPHYTE’ Moot Court Competition, 2024

IN THE MATTER BETWEEN

Mr. Roshan Singh

……Petitioner

VERSUS

Dr. Hansraj Hathi and his team

……Defendant

MEMORIAL ON BEHALF OF THE DEFENDANT

 ‘NEOPHYTE’ Moot Court Competition, 2024

Table of Contents

List of Abbreviation__________________________________________________________2

Index of Authorities __________________________________________________________3

Statement of Jurisdiction ______________________________________________________4

Statement of Facts ___________________________________________________________ 6

Issues Raised _______________________________________________________________7

Summary of Arguments _______________________________________________________8

Arguments Advanced _________________________________________________________9

Prayer _____________________________________________________________________12

‘NEOPHYTE’ Moot Court Competition, 2024

 ‘NEOPHYTE’ Moot Court Competition, 2024

LIST OF ABBREVIATIONS

IPC Indian penal code

AIR All India Record

SC Supreme Court

V. Versus

CPC Civil Procedure code

§ Section

Art. Article

Ors. Others

SC Supreme Court

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 ‘NEOPHYTE’ Moot Court Competition, 2024

SCC Supreme Court Cases

INDEX OF AUTHORITIES

CASES

JACOB MATHEW CASE,(2005) 6______________________________________________

MR. M RAMESH REDDY v. STATE OF ANDHRA PARDESH [1975]36STC439(AP)__

Indian Medical Association vs V.P. Shantha & Ors on 13 November, 1995______________

ARTICLES

HOPKINS MEDICINES Art___________________________________________________

DEAN LAW FIRM Art________________________________________________________

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 ‘NEOPHYTE’ Moot Court Competition, 2024

STATEMENT OF JURISDICTION

The Petitioner has approached the Hon'ble City Civil Court of Mobali under section 9, 19 & 20
of Code of Civil Procedure, 1908, which reads as

Section 91 Courts to try all civil suits unless barred. The Courts shall (subject to the provisions
herein contained) have jurisdiction to try all suits of a crvil nature excepting suits of which their
cognizance is either expressly or impliedly barred. (Explanation IJ A suit in which the right to
property or to an office is contested in a suit of a civil nature, notwithstanding that such right
may depend entirely on the decision of questions as to religious time or ceremonies

[Explanation IT-For the purposes of this section, it is inomaterial whether or not any fees are
attached to the office referred to in Explanation I or whether or not such office is attached to a
particular place.]

Section 192 : Suits for compensation for wrongs to person or movables- Where a suit is for
compensation for wrong done to the person or to movable property, if the wrong was done
within the local limits of the jurisdiction of one Court and the defendant resides, or carries on
business, or personally works for gain within the local limits of the jurisdiction of another Court,
the suit may be instituted at the option of the plaintiff in either of the said Courts.

1
Code of Civil Procedure, 1908, § 9

2
Code of Civil Procedure, 1900, § 19

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 ‘NEOPHYTE’ Moot Court Competition, 2024

Section 201: Other suits to be instituted where defendants reside or cause of action anses- Subject
to the limitations aforesaid, every suit shall be instituted in a Court within the local Limits of
whose jurisdiction

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(a) the defentiant, or each of the defendants where there are more than one at the time of the
consmencement of the sunt actually and voluntarily resides or cames on busmess, or personally
works for gain, on any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, on carries on business, or personally
works for gam provided that in such case either the leave of the Court is given, or the defendanu
who do not reside, or carry on business, or personally works for gain, as aforesaid acquiesce in
such institution, or c) The cause of action, wholly or in part, anses
[Explanation) A cooperation shall be deerned to carry on business at ita sola of principal office in
india or in respond any we of action arising at any place where it has also a subordinate office, at
such place

1
Code of Civil Procedure, 1908, § 20

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 ‘NEOPHYTE’ Moot Court Competition, 2024

Statement of Facts

BACKGROUND:-

1) Dr. Hansraj Hathi (Defendant) is the renowned surgeon, with 25 yrs of experience, equipped
withhis e/well equiped team of experts in V.A. Hospital, Chandigarh. Had had well reputation
along with huge client base.

2) He has a close friend Mr. Roshan Singh (Plaintiff), whose son is Gogi, Dr. Hathi serves as
family doctor to them.

3) He helped Gogi in his chronic stomach issue with regular consultation, medicines and
frequent house visits.

4) He suggested the radical new procedure for curing the same he had learnt in United States.
There is no proof that such process is allowed by health ministry or required equipments and
resources are present in country.

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 ‘NEOPHYTE’ Moot Court Competition, 2024

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5) On October 26th, 2023 surgery was done . Gogi was shifted to ICU for recovery, but he didn't
wake up after the expected time, sense of doubt developed in Mr. Roshan Singh.

6) Gogi eventually woke up but unfortunately slipped into comma, the risks involved in the case
encountered. Coma was not within the risks involved with surgery according to Dr. hansraj.

7) surgery was done through radical new procedure which Dr. Hansraj learnt in US and have no
prior experience in that or any expertise. Also no fact present that shows such procedure is
legal in country.

8) Gogi eventually woke up but unfortunately with some mental deficits.

9 When investigation was conducted as to the reason of coma and report comeout was that wrong
medicine was admitted to the patient during surgery.

ISSUE RAISED

[I]

Whether the case filled by Mr. Roshan singh is maintainable at the city civil court at
Mohali.

______________________________________________________________________________

[II]

Whether Dr. hansraj hathi and his team be liable for medical negligence based on the
performed surgery and various reports as presented ?

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 ‘NEOPHYTE’ Moot Court Competition, 2024

______________________________________________________________________________

SUMMERY OF ARGUMENTS

______________________________________________________________________________

ISSUE 1: WHETHER THE CASE FILED BY MR. ROSHAN SINGH IS

MAINTAINABLE AT THE CITY CIVIL COURT AT MOHALI?

It is humble submitted before this Hon'ble court Firstly, the concerned case is rightly
maintainable in Mohali since "Cause of Action" partly arises in Mohali when doctor negligently
suggested the not so required radical new procedure to child (Gogi). Also, the principle to ensure
convenience to Defendant is rightly ensure in the said case as it is convenient for doctor to travel
to Mohali evident by his frequent visits to Mr. Singh's house. Secondly, T the concerned case is
maintainable in city civil court because the said case is Civil in nature. The case of Medical
Negligence can be either criminal or civil. However, absence of mens rea on part of Dr. Hathi
made this case civil in nature. Thirdly, the burden of proof is rightly discharged by the Petitioner.
This is evident by the report presented by Mr. Roshan Singh clearly shows that wrong medicine
has been administered to child which has resulted into the serious medical issue with the child.

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 ‘NEOPHYTE’ Moot Court Competition, 2024

ISSUE 2-WHETHER DR. HANSRAJ HATHI AND HIS TEAM BE HELD LIABLE FOR
MEDICAL NEGLIGENCE BASED ON THE PERFORMED SURGERY AND VARIOUS
REPORTS AS PRESENTED?

It is humbly submitted before the Hon'ble court Firstly, Dr. Hathi can be held liable under the
said section as he was willfully negligent in his conduct as he took up a treatment which was not
in best of his knowledge and experience in a situation where it was uncalled for. Secondly, Dr.
Hathi acted in a manner where he compromised on the standards of care which a doctor needs to
keep in his mind. Thirdly, Dr. Hathi didn't have proper knowledge about the medicine which he
administered still he prescribed the same during the surgery and due to that Gog went into coma
and faced mental deficits also.
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ARGUMENT OF ADVANCED

THE SUIT IS MAINTAINABLE IN CITY CIVIL COURT

• The concerned case is rightly maintainable in Mohali since "Cause of Action" partly
arises in Mohali when doctor negligently suggested the not so required radical new
procedure to child (Gogi). Also, the principle to ensure convenience to Defendant is
rightly ensure in the said case as it is convenient for doctor to travel to Mohali evident by
his frequent visits to Mr. Singh's house.

• Secondly, the concerned case is maintainable in city civil court because the said case is
Civil in nature. The case of Medical Negligence can be either criminal or civil. However,
absence of mens rea on part of Dr. Hathi made this case civil in nature.

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 ‘NEOPHYTE’ Moot Court Competition, 2024

• We can infer from the term carries on business contends that if the defendant works for
his personal work at a particular place then the jurisdiction of that particular court lies in
that case, here dr.Hnasraj Hathi worked as a family doctor for his personal gain,hence the
jurisdiction of Mohali civil court lies in this case.

• Thirdly, the burden of proof is rightly discharged by the Petitioner. This is evident by the
report presented by Mr. Roshan Singh clearly shows that wrong medicine has been
administered to child which has resulted into the serious medical issue with the child.

As mentioned in section 19 of civil Procedure code Where a suit is for compensation for
wrong done to the person or to movable property, if the wrong was done within the local
limits of the jurisdiction of one Court and the defendant resides, or carries on business, or
personally works for gain, within the local limits of the jurisdiction of another Court, the
suit may be instituted at the option of the plaintiff in either of the said Courts, here Dr.
Hansraj Hathi used to work as a family doctor for Mr. Roshan Singh which can be
termed as working for personal gain as mentioned in section 19 cpc, therefore the
jurisdiction of civil courts of Mohali in this case.

ISSUE – 2

That Dr. Hansraj Hathi and his team is liable for medical negligence based on the performed
surgery and various reports and evidences presented.
it humbly submitted before the court that as per the JHONS HOPKINS MEDICINES Art. and
Ors. scientific researches, reasonable after surgery discomfort and complications are Hemorrhage
means bleeding, Wound infection, Lung complication, urinary retention etc.

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 ‘NEOPHYTE’ Moot Court Competition, 2024

but coma and vegetative state can be happen as an result of negligent injury suffered during
surgery as per DEAN LAW FIRM Art. and Ors. researches such as low blood pressure, vascular
pressure,brain damage due to oxygen deprivation and wrong medication. lack of oxygen supply
to the brain for long period, in some cases an anesthesia error error produces these condititon.

(B) It is advanced before court that V.A Hospital presented false report and are punishable under
§ 193 of ipc. Which is proved by the fact that dr. hansraj is a renowned general surgeon in V.A
Hospital and has very wide client base.

(C) further, report put forward by Mr. Roshan Singh clearly founds the wrong mediction.
Which is only possible either knowingly orr negligently. Court should consider the intention of
Mr. Roshan singh who would have filed a criminal case under § 304 of IPC 1860 on the
discretion of . JACOB MATHEW CASE,(2005) 6 SCC1. Which clearly proves the defendendts
allegations that MR. Roshan Singh wants to harms the reputation of Dr. Hansraj and V.A
Hospital are wrong and have no basis.

(D) it is, therefor , submitted before the hon’ble court that besides all arguments of defendant,
one fact cant denied that surgery was not successful and According to maxim RES ISPA
LOQUITOR hon’ble court can held them vicariously liable as condition of gogi is self
explanatory that injury suffered is beyond reasonable loss/fear and was not within series of risks
that surgery carries acc. to Dr. hansraj.
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(E)it is humbly submitted before the hon’ble court that in this case following essential of
negligence are fullfiled that are:-

• The defendant owed a duty of care to the plaintiff.

• The defendant made a breach of that duty.

• The plaintiff suffered damage as a consequence of that breach.

(F)It is advanced before this court that doctor owes following duties of care to his patient:-

• It is his duty to decide whether he wants to undertake the case or not,

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 ‘NEOPHYTE’ Moot Court Competition, 2024

• It is his duty to decide what treatment to give and;

• It is his duty to decide the administration of treatment.

Here the doctor was negligent in doing his work as he administered wrong medicine to his
patient, as presented in the report given by Roshan singh hence the doctor brached his
duity and should eb made liable for medical negligence.

If a doctor fails to perform the aforesaid duties it results in breach of duty and gives a right
of action to the patient as per the law of land.

(G) It is also submitted before the hon’ble court that defendent also failed in CUSTOM
TEST that is the method adopted by the concerned doctor was not ethical. Fact is doctor
used radical new procedure on patient which he learned in US but there is no information
wheather that procedure is allowed by ministry of health. Fact sheet is also silent on the
question wheather resources and equipment required for such radical procedure about
which he had no prior experience are available or not in country.

(H)It is submitted before the hon’ble court that it is the responsibility of the hospital if
an employee causes harm to a patient by acting negligently, on the basis of Mr M Ramesh
Reddy v. State of Andhra Pradesh case.

(I) It is submitted for the above reason that this fall under the purview of the Consumer
Protection Act, 1986 on the bais of judgment of the Supreme Court in Indian Medical
Association vs. V.P. Shantha case , that is Medical Services should be treated as the
“services” under § 2(1) (o) of the Consumer Protection Act, 1986.
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PRAYER

Therefore in the light of issue raised, arguments advanced and authorities cited, the Appellants
very politely request the Hon'ble Court to adjudge and be pleased to declare that:

‘NEOPHYTE’ Moot Court Competition, 2024

 ‘NEOPHYTE’ Moot Court Competition, 2024

(i) The doctor, Mr. Hansraj Hathi and his team from V.A. Hospital should be held liable for
their conduct under the tort of medical negligence.

(ii) Appropriate compensation should be given to Mr. Gogi for the mental ailments and pain
during the surgery he has got from the negligent behavior. Also the defendants should be ordered
to deliver the litigation cost that has been incurred to plaintiffs for this suit.

(iii) And pass any other order, direction or relief which it may deem fit in the interest of
justice, fairness, equity and good conscience.

For this act of fairness, the Petitioner shall be duty bound forever pray.

S/D-

Counsel on behalf of the appellant .

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‘NEOPHYTE’ Moot Court Competition, 2024