IN THE HON BLE HIGH COURT OF RAJASTHAN

Transcription

1 ITM SCHOOL OF LAW - MOOT COURT EXERCISE IN THE HON BLE HIGH COURT OF RAJASTHAN IN THE MATTER OF RAJMAL...APPELLANT V. STATE OF RAJASTHAN...RESPONDENT COUNSEL FOR APPELLANT SAKSHI JI 13LLB064

2 TABLE OF CONTENTS 1. List of Abbreviations (iii) 2. Index of Authorities (iv) 3. Statement of Jurisdiction (vi) 4. Issues Raised (vii) 5. Statement of Facts (viii) 6. Summary of Arguments (ix) 7. Written Submissions (x) 8. Prayer for Relief (xiii) Memorandum for the Appellant Page 2

3 LIST OF ABBREVIATIONS & AC AIR ALL E.R AP BOM DEL HON BLE KB KER MAD P.M. SCC Sec. SJ And Appeal Cases All India Reporter All England Law Reports Andhra Pradesh Bombay Delhi Honorable King s Bench Kerala Madras Per Month Supreme Court Cases Section Select Judgments V. Versus WWW World Wide Web Memorandum for the Appellant Page 3

4 INDEX OF AUTHORITIES Statutes Referred:- 1. Constitution of India - Article Indian Penal Code - Sec. 304A Cases Referred:- 1. Achutrao Haribhau Khodwa V. State of Maharashtra 1 2. Arun Balkrishnan Aiyar V. M/s Soni Hospital 2 3. Cassidy V. Ministry of Health 3 4. Dr. Laxman Balkrishna Joshi V. Dr. Trimbak Bapu Godbole 4 5. Dr. Leela Bai V. Sebastian 5 6. Dr. M. K. Gour Kutty V. M. K. Raghavan 6 7. Dr. Pinnnamenani Narsimha Rao V. Gundavarapu Jayaprakasu 7 8. Gold V. Harrington Health Authority 8 9. Indian Medical Association V. V. P. Shantha Khairati Lal Khurana V. Government of India Lindsey Country Counsel V. Mary Marshall M. L. Singhal V. Pradeep Mathur Mohan V. Osborne Morris V. Winsbury-White Nizam s Institute of Medical Sciences V. Prasanath S. Dhananka Philips India V. Kunju Punnu Poonam Sharma V. Union of India 17 1 AIR 1996 SC AIR 2003 MAD (1951) 1 ALL ER AIR 1969 SC AIR 2002 KER AIR 2001 KER AIR 1990 AP (1987) 2 ALL ER 888 (CA) 9 AIR 1996 SC AIR 2002 DEL (1937) AC AIR 1996 DEL (1939) 2 KB (1937) 4 ALL ER (2009) 6 SCC 1 16 AIR 1975 BOM AIR 2003 DEL 50 Memorandum for the Appellant Page 4

5 18. Poonam Verma V. Ashwin Pate Scurianga V. Powell Smt. Bholi Devi V. State of Jammu & Kashmir 20 Books Referred:- Websites:- 1. Ramaswamy Iyer s The Law Of Torts by A Lakshminath & M Sridhar 2. Ratanlal and Dhirajlal The Law of Torts Updated 26th Edition 2013 by Justice G P Singh 3. Ratanlal and Dhirajlal The Law of Torts by Ratanlal Dhirajlal 4. The Law of Torts: Examples & Explanations by Joseph W. Glannon 5. Gilbert Law Summaries on Torts by Marc A. Franklin 6. Introduction To The Law of Torts by Singh (Avtar) & Kaur (H) 7. Law Of Tort by P.S.A. Pillai AIR 1996 SC (1979) 123 SJ AIR 2002 SC 65 Memorandum for the Appellant Page 5

6 STATEMENT OF JURISDICTION This memorandum of appeal submitted by the appellant, Rajmal, has approached the HON BLE High Court of Rajasthan under Sec of The Constitution of India Power of High Courts to issue certain writs. (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, 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. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated. (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32. Memorandum for the Appellant Page 6

7 ISSUES RAISED Whether the act of the doctor amounts to negligent or not? Whether the State Government (Department of Health Services) is vicariously liable for the act of doctor or not? Whether the appellant is entitled for compensation that he has claimed or not? Memorandum for the Appellant Page 7

8 STATEMENT OF FACTS 1. The appellant s wife Smt. Lalitabai had three minor children. 2. She was earning Rs. 500/- p.m. from her tailoring business and the appellant is having only a meagre income of Rs. 300/-, 400/- p.m. 3. Smt. Lalitabai was suffering from Laproscopic Tubectomy and she was being operated for Laproscopic Tubectomy on 2nd April, 1989 at Primary Health Centre, Gangapur city, District - Sawaimadhopur. 4. During the Tubectomy operation of the appellant s wife, she died. 5. Death was caused by neurogenic shock resulting in cardiac arrest and by insertion of pneumo peritoneal needle. 6. The appellant lost his life partner at the age of 30 years at the time of her death, due to the lack of the resuscitative equipments, trained anesthetist and professional negligence on the part of the concerned doctor who had conducted the operation of the appellant's wife. 7. He filed a writ petition against the State Government claiming a sum of Rupees 1, 00,000/- for the loss of his wife who was a substantial earner of the family. Memorandum for the Appellant Page 8

9 SUMMARY OF ARGUMENTS The appeal filled by the appellant Rajmal for the compensation of the damages caused to him is completely valid due to professional negligence on part of doctor and vicarious liability arises on the state. Hence, the appellant is entitled for substantial compensation - a sum of Rupees 1, 00,000/- which is claimed by the appellant in the writ petition itself. Memorandum for the Appellant Page 9

10 ARGUMENTS ADVANCED The doctor is liable for the death of the appellant s wife as the act of the doctor constitute to negligence as under Section 304A of the Indian Penal Code and also the State Government (Department of Health Services) is vicariously liable for the act of doctor. Thus the appellant is entitled for substantial compensation. Section 304A of the INDIAN PENAL CODE:- Causing death by negligence: Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. In this case Section 304A of the Indian Penal Code is applicable as circumstances leading to the death of the appellant's wife were accidental on account of carelessness and negligence on the part of the Doctor and due to that the appellant s wife had died and this act doesn t amounts to culpable homicide, hence the respondent shall be punished with imprisonment for a term which may be extended to two years or with fine or with both. Since the nature of the operation is extremely sensitive the doctor should take the adequate safeguards by making necessary equipments available for the concerned operation than the death of the patient could have been possibly avoided. It was also the responsibility of the State Government (Department of Health Services) to have taken adequate care and precaution that all medical equipments were made available to the concerned Doctor who had conducted the operation on the appellant's wife. The department of Health Services, Gangapurcity, which is an instrumentality of the State cannot escape responsibility based on the principle of vicarious liability and the doctrine of 'res ipsa liquitor', since the concerned Doctor who conducted the laproscopic tubectomy operation was an employee of the State Government rendering his services at primary health centre, Gangapurcity District Sawaimadhopur and the incident occurred in the discharge of his official duty towards the employer i.e., the State Government of Rajasthan. Hence the Health Services department is vicariously liable for the acts of its employee. In order to my support my case, I would like to bring into light similar cases that has already decided by the other High Courts and Supreme Courts:- In the case of Achutrao Haribhau Khodwa V. State of Maharashtra 22, a mop (towel) was left inside a women s peritoneal cavity while she was operated upon for sterilization in a 22 AIR 1996 SC 2377 Memorandum for the Appellant Page 10

11 government hospital causing peritonitis which resulted in her death. The conclusion of the negligence was drawn against the doctors by applying the principle of res ipsa loquitor and the Government was vicariously held liable to pay damages. In the case of Arun Balkrishnan Aiyar V. M/s Soni Hospital 23, while operating abdominal pad was left inside the body of the appellant which was removed later by an another operation. The surgeons and the hospital were held guilty of negligence in relation to the first operation and were held liable for damages. In the case of Cassidy V. Ministry of Health 24, the plaintiff, who was suffering from a contraction of third and fourth fingers of his left hand, was operated on at the defendant s hospital by a surgeon. After the operation the plaintiff s hand and forearm were banded to a splint and they remained so for 14 days. During this time the plaintiff complained of pain, but, apart from ordering the administration of sedatives, no action was taken by the surgeon. When the bandages were removed, it was found that all the four fingers of the plaintiff s hand were stiff and that hand was practically useless. It was held that the defendants were liable for the negligence of the surgeon. In the case of Dr. Laxman Balkrishna Joshi V. Dr. Trimbak Bapu Godbole 25, a young boy, aged 20, met with an accident which resulted in the fracture of the femur of his left leg. After some temporary treatment by a local doctor who tied wooden planks o the injured leg, he was at last brought to the respondent s hospital for treatment. The respondent had given instructions to his assistant Dr Irani to give two proper doses of injection of morphia before bringing the patient to the operating theatre for putting the injured leg in plaster splints. Dr Irani by inadvertence gave only one injection which resulted in that the young man died as the result of shock suffered for not having been administered for the adequate quantity of anaesthesia before operation. The trial court and the High Court founded that the defendants were liable and in the suit filed on behalf of the deceased, the claimant was awarded Rs. 3,000 as damages. The Supreme Court, in appeal, affirmed the concurrent finding of the facts by the lower courts and upheld the decree for damages. The Supreme Court, in this case stated that: The duties which a doctor owes to his patients are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in administration of the treatment. A breach if any of any of these duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care and competence judged in the light of the particular circumstanced of each case is what the law requires of. 23 AIR 2003 MAD (1951) 1 ALL ER AIR 1969 SC 128 Memorandum for the Appellant Page 11

12 The facts are quite similar in the other cases such as Mohan V. Osborne 26 and Morris V. Winsbury-White 27 In the case of Dr Leela Bai V. Sebastian 28, Dr. Pinnnamenani Narsimha Rao V. Gundavarapu Jayaprakasu 29 and the case of Poonam Sharma V. Union of India 30. The facts are quite similar in the above mentioned cases. A very promising young boy of 17 years was admitted in Government hospital for removal of tonsils. As a result of the negligence in the administration of anaesthesia during the operation, the patient became victim of cerebral anoxia making him dependent him dependent on his parents. The anaesthetist, the surgeon and the Government were all held liable for the damages to the plaintiff. In the case of Dr. M. K. Gour Kutty V. M. K. Raghavan 31, due to the negligence in a tubectomy operation of a woman she was not able to regain consciousness, even after 30 years and she was leading life like vegetables; The anaesthetist, the surgeon and the Government were all held liable for the damages to the plaintiff and they jointly paid a compensation of Rs. 3,80,944. In the case of Khairati Lal Khurana V. Government of India 32, because of the negligence of the doctors of Government hospital in a tubectomy operation, the plaintiff lost his son and thus the doctors and the Government were held liable for the damages to the plaintiff. In the case of Nizam s Institute of Medical Sciences V. Prasanath S. Dhananka 33, complainant was than an engineering student suffered from recurring fever. The X ray examination revealed tumour in left hemithorox with erosion of ribs and vertebra. Even then without having MRI or Myelography done, cardiothororacic surgeon excised the tumour and found vertebral body eroded. Operation resulted in acute paraplegia of the complainant. MRI or Myelography at the pre-operation stage would have shown necessity of a neurosurgeon at the time of operation and the paraplegia perhaps avoided. Consent was not taken for removal of tumour but only for excision biopsy. The hospital and the surgeon were held liable for negligence. The Supreme Court awarded a sum of Rs. 2000/- per month for 30 years under this head which was capitalized to a sum of Rs. 7.2 lakhs. The complainant was further awarded a sum of Rs.14,40,000 to cover expenses for a nurse and Rs.10,80,000 to cover expenses on physiotheraphy for 30 years. In addition the complainant was allowed Rs.50 lakhs for medical expenses and loss of earnings and Rs.10 lakhs towards pain and suffering. The total amount of compensation 26 (1939) 2 KB (1937) 4 ALL ER AIR 2002 KER AIR 1990 AP AIR 2003 DEL AIR 2001 KER AIR 2002 DEL (2009) 6 SCC 1 Memorandum for the Appellant Page 12

13 thus allowed was Rs.1 Crore with interest of 6% till the date of payment giving due credit for any compensation already paid. In the case of Smt. Bholi Devi V. State of Jammu & Kashmir 34, the victim was given injection intravenous which was meant to be intramuscular all this against clear instructions. The victim died the Government was held liable in public law for damages. Her legal heirs were allowed Rs. 90,000 as compensation. These cases mentioned are decided cases either in the High Courts or in the Supreme Courts. The cases decided in the High Court s leads to the persuasion effect on this court and the decision of the Supreme Court is binding upon the lower courts according to Article 141 of the Indian Constitution 35. Appellant being the husband besides suffering loss of company of his wife also underwent agonising moments seeing his wife undergoing physical and mental torture at the hands of defendants. This torture suffered by plaintiff cannot be compensated hence he restricted his claim only to a nominal amount in this suit. The appellant seeks damages for his litigation cost, mental trauma, operation cost, loss of livelihood, loss of an earning person of the family. Thus the counsel request the court to give the substantial compensation to the husband of the deceased Smt. Lalitabai who is applicant herein and who has three minor children to support and lost his life partner who was about 30 years of age at the time of her death and was earning Rs. 500/- p.m. from tailoring business and also the fact that the petitioner is having only a meagre income of Rs. 300/-, 400/- p.m. as per the record, a sum of Rupees 1,00,000/- should be awarded to the appellant by the State Government by way of compensation which has been claimed by the appellant in the writ petition itself. The counsel request the court that this amount shall carry 12% per annum from the due date, i.e., till the date of actual payment and this relief shall not be deducted from the amount of compensation. 34 AIR 2002 SC Law declared by Supreme Court to be binding on all courts. The law declared by the Supreme Court shall be binding on all courts within the territory of India. Memorandum for the Appellant Page 13

14 PRAYER FOR RELIEF In the light of" the facts stated, arguments advanced, and authorities cited, the Counsel for appellant humbly prays before this Honorable High Court of Rajasthan to declare that:- 1. The act of the doctor amounts to negligent. 2. The State Government (Department of Health Services) is vicariously liable for the act of doctor. 3. The appellant is entitled for the substantial compensation Rs 1,00,000/- with a interest of 12% per annum. And pass any other order that this Honorable Court may deem fit in the interests of justice equity and good conscience. Date: - 15 th November, 2013 ALL OF WHICH IS REPECTFULLY SUBMITTED Place: - Gurgaon Counsel for Appellant Sakshi Ji 13LLB064 Memorandum for the Appellant Page 14