Moot Court Competition

Transcription

1 First State Level Moot Court Competition Feb 2-4, 2018 Organised By Shri.A.K.Venkata Subramaniam Chair of Excellence on Consumer Law and Jurisprudence, The Tamil Nadu Dr.Ambedkar Law University, Chennai Venue U.G Block, The Tamil Nadu Dr.Ambedkar Law University (New Campus), Perungudi, Chennai 113, (Near Taramani Railway Station). Under e aegis of Department of Consumer Affairs, Ministry of Consumer Affairs, Food and Public Distribution, Government of India

2 ABOUT THE UNIVERSITY The Tamil Nadu Dr.Ambedkar Law University is a premier institution for legal education, established in e year 1997 in pursuance of e Tamil Nadu Act No.43 of As a sui generis model, e University is e first of its kind in e country offering legal education bo on its campus and rough e affiliated law colleges in e State of Tamil Nadu. All e ten Government Law Colleges stand affiliated to e Tamil Nadu Dr.Ambedkar Law University. The University has established e School of Excellence in Law in e University campus. ABOUT THE CHAIR OF EXCELLENCE ON CONSUMER LAW AND JURISPRUDENCE The Chair of Excellence on Consumer Law and Jurisprudence named after Shri.A.K.Venkata Subramaniam, a former Secretary, Government of India and a Consumer Activist has been functioning since The objectives of e Chair among oers are: (i) to provide for e advancement and dissemination of knowledge of law and eir role in e development of better education; to promote legal education and well-being of e community generally and (iii) to provide access to legal education of large segments of e population and in particular to e disadvantaged groups. The Chair proposes to organise a State Level Moot Court Competition in e first week of February, RULES FOR THE STATE LEVEL MOOT COURT COMPETITION, 2018 State Level Moot Court Competition will be organized by e Chair of Excellence on Consumer Law and Jurisprudence of The Tamil Nadu Dr.Ambedkar Law University, Chennai. All decisions by e Organizers in case of any disputes/ doubts etc. will be final. The Organizers may make such rules and procedures at any point of time, as ey deem fit. Participating College/University/Institution shall be presumed to be e parent institution of e Participating Team. Rules should be strictly adhered to. Any deviation erefrom would attract disqualification or oer penalties mentioned subsequently. Imposition of penalties including disqualification rests solely wi e Organizers in case of failure to comply wi e rule(s) and deadline(s). All e rules are only inclusive and not exhaustive for e competition. Date and Venue nd rd The First State Level Moot Court Competition shall be held on 2, 3 and 4 of February, 2018 at U.G Block of School of Excellence in Law, The Tamil Nadu Dr.Ambedkar Law University(New Campus), Perungudi, Chennai 113, (Near Taramani Railway Station).

3 Dress Code The participants shall adhere to e following dress code when present in any court room during e competition: Boys: White shirt, black trousers and black tie along wi block coat and black shoes. Girls: White salwar and kurta or white shirt and black trousers along wi black coat and black shoes. The Participating teams shall also adhere to e above mentioned dress code while attending e inaugural and valedictory ceremonies of e Competition. No team shall be allowed to leave after e conclusion of prelims and quarter-final rounds. Language The official working language of e Moot Court Competition is English. Eligibility The competition is open only for bona fide students of recognized Institutions /Universities /Organizations in e State of Tamil Nadu who are currently pursuing eir Bachelor's degree in Law i.e. 3 Years LL.B. or 5 Years LL.B. Programme. Team composition One team from each participating college shall be registered for e competition. Each team shall consist of 3 members. There shall be 2 speakers and 1 researcher designated in a 3 member team while in case of a 2 member team, bo e members shall be considered to be speakers. Teams shall identify e speakers and researcher during registration. No extra member or observer shall be allowed. Changes in e composition of team members once submitted will not be allowed. Registration Teams must confirm eir participation by sending of e 'Registration Form' completely filled in and duly signed by e Head of e participating Institution along wi e Registration Fee of Rs.1000/- per team by way of Demand Draft in favour of 'Chair of Excellence on Consumer Law and st Jurisprudence' payable at Chennai on or before 31 December, 2017 to e convenor, Prof. (Dr.) V. Balaji to e address provided in e brochure. No forms received after e deadline shall be considered for registration. Rounds There shall be Preliminary Round, a quarter-final round, a semi-final round and a final nd round. Orientation and draw of lots shall take place on 2 February, There shall be preliminary round wherein every Participating Team shall be required to argue once from each side.

4 rd Preliminary round, Quarter-Finals will be held on 3 February, The Semi-Finals and The Final round will be held on 4 February, Preliminary Rounds Each team will be given a total of 30 minutes to present its case. The time includes questioning by judges. The division of time is left to e discretion of e team members, subject to a maximum of 18 minutes per speaker. Division of time should be informed to e Court Assistants/Clerks at e beginning of e round. The arguments need to be confined to e issues presented in e memorials. Passing of notes to e speakers by e researcher during e rounds is allowed. A maximum of 5 minutes may be reserved for rebuttal or sur-rebuttal. In e Preliminary Rounds, each Team shall argue eier once as a Petitioner / Respondent. All teams are expected to carry wi emselves any case law and auorities which ey intend to refer to. It is to be noted at e speaker need not explain e facts of e moot problem to e judges before ey start e arguments. Quarter Final, Semi-final & Final Rounds The time limit in e Quarter finals and e Semi-finals is e same as preliminaries. In e Finals each team will get a total 45 minutes to present its case. The division of time is left to e discretion of e team members, subject to a maximum of 25 minutes per speaker. Division of time should be informed to e Court Assistants/Clerks before e beginning of e rounds. In all e rounds, during e course of e oral submissions, e speaker shall neier reveal his/her identity nor e identity of eir college/university by any means whatsoever. Such actions on part of e any member of e team will lead to disqualification of e team from e competition. Selections While selection for quarter-finals would be on win basis, e quarter-final, semi-final and final rounds would be on a 'knock-out' basis. In case of a tie, e aggregate score of e team would be considered. In e prelims, e top 8 teams who have won in e preliminary round shall proceed to e quarter-final. The top four teams selected after e quarter-final round will proceed to semi-final. The top two teams selected after semi-final will proceed to final round. The final round shall take place between e winners of semi-final. Memorials The following requirements for memorials must be strictly followed and any noncompliance of e same shall attract penalties or disqualification: Each team must prepare memorials for bo e sides mentioned in e Moot Problem. Once e Memorials have been submitted, no revisions, supplements or

5 additions will be allowed. The last date for submitting e Memorials for bo e sides in soft copy as well as in hard copy is 15 January, No amendments/ improvements shall be made subsequent to e referred submission. The soft copy of e Memorials should be sent via to consumerchair@gmail.com. The hard copy of e memorials should be sent to e Convenor, Prof.(Dr.) V.Balaji to e address provided in e brochure. Eight copies of each of e memorials for Petitioner & Respondent (excluding copies for use by e team) should be sent. It shall be e sole responsibility of e respective Participating Teams to ensure at e correct number of copies of e Memorials is submitted to e Organizers wiin e prescribed deadline. The copies submitted to e organisers would be for e use of e Memorial Judges and Bench Judges and shall not be returned to e participants. Guidelines for Memorial A. Memorial Structure: a) Cover Page (The cover page shall contain e case title, side of e memorial, year of competition, name of e court and team code on e top right corner). b) Table of Contents c) List of Abbreviations d) Index of Auorities e) Statement of Jurisdiction f) Statement of Facts g) Issues given h) Summary of Arguments i) Pleadings / Arguments advanced j) Prayer B. Content Specifications: a) Font and Size (General) - Times New Roman, 12 pts b) Line Spacing (General) lines c) Font and Size (Footnotes) - Times New Roman, 12 pts d) Line Spacing (Footnotes) - Single line e) Page Margins - 1 inch on all sides f) Page Limit (Entire Memorial) - Not to exceed 30 pages g) Paper Specification - White A4 sized paper h) Cover Specification - Appellant(Blue); Respondent(Red)

6 i) Binding Specification - Spiral Binding. Evaluation of Memorials Every Memorial will be marked on a total of 100 marks and e team memorial marks will be e average of e total of bo sides. Memorials will be judged by a special panel of judges. The memorial which secures e highest score based on e cumulative marks of e two memorials submitted, shall be adjudged as e Best Memorial. The following shall be e marking scheme: Exchange of Memorials There shall be an exchange of memorials between e respective opponent participating teams as would be placed after e draw of lots in all e rounds of e competition. The teams are prohibited from making any marks on e memorials us exchanged. They are also prohibited from making any copies of such memorials. The teams shall return e exchanged memorials to e Court Officer of e respective round. Evaluation of e Speakers Speakers would be adjudged under e following categories during eir oral presentation:

7 The decision of e judges as to e marks allotted to any team shall be final. So as to ensure uniformity in e marking system all e judges will be provided wi a marking guideline. Memorial scores shall be added in preliminary round only. In e quarters, semi-finals and finals, memorial scores will be taken into consideration only in e event of a tie. Speaker who scores highest marks will be adjudged as Best Speaker. Best Researcher The following are e guidelines for selecting e best researcher: Assisting e Speakers Awards

8 In addition to e above, all e participants will be given a Certificate of Participation. While deciding e winning team and Runner-up, e performance of bo e Speakers and e Researcher will be taken into account. Important Dates 30 November, 2017 Release of Moot Problem st 31 December, 2017 Last date for seeking clarifications in e moot problem and for registration along wi details of payment 5 January, 2018 Release of Clarifications and confirmation of Participation of e selected teams 15 January, 2018 Last date for submission of hard copies and soft copies of Memorials nd 2 February, 2018 Inauguration of Moot Court Competition rd 3 February, 2018 Preliminary & Quarter Final Rounds 4 February, 2018 Semi Final, Final Rounds & Valedictory Team Code On confirmation of participation, each team will be provided a team code. The participating teams are requested to quote e team code in eir memorials and in all correspondences after its allocation. Clarifications st Last date for requesting clarifications on Moot Problem is 31 December, Teams are requested to use e as e mode for seeking clarifications. A full list of clarifications shall be sent to all e teams rough by 5 January, Delays in Appearance / Presentation If a team scheduled to take part in a round does not appear in e scheduled time, e oer team shall be allowed to submit ex-parte. The criteria of rebuttals shall not be considered in such cases for evaluation in place of which an average for e same would be given on e basis of e marks scored by such team on oer criteria. Scouting Teams will not be allowed to observe e Rounds of any oer teams. Scouting is strictly prohibited. Scouting by any of e teams will result in instant disqualification. In case of any default, e Organizers' decision will be final.

9 MOOT PROBLEM 1. Mr.Ramasamy, (hereinafter referred to as 'e patient') aged about 55 years, faer of two, working in a private concern, as an accountant, was e native of a village situated in e district of Madurai in e State of Tamil Nadu. In , he was suffering from breaing problem for a period of 7 mons intermittently. On , he was having severe breaing difficulty in e morning. So he consulted one Dr.Manoj ( hereinafter referred to as e Respondent No.2), a government doctor, working in a Primary Heal Centre (herein after referred to as e PHC) who treated him free of cost and prescribed some tablets. Those tablets gave relief to e patient for a short interval and he returned back to his routine work. On and off, he had e same complaints and he got treated at PHC. 2. After e passage of 4 mons, e Patient again suffered e same problem and he approached e PHC for treatment but he did not get better. Respondent No.2 advised e Patient to go to e nearest Government Hospital for furer treatment due to lack of facility at PHC. But, e Patient approached one Dr.Ram Kumar (hereinafter referred to as e Respondent No.3), a doctor running a private nursing home in a small town 10 k.m away from his village. He prescribed some tablets & nebulisation and asked e patient to take a few tests (Chest X-ray and Blood test) and visit him again. As ere was no brealessness after e consumption of tablets, he didn't turn up for review and did not take e tests, as advised. Days were passing wiout any complaints for a period of 6 mons. 3. On , e patient again suffered severe brealessness and chest discomfort. So he was taken to Quick Heal Hospital Pvt. Ltd (hereinafter referred to as 'e Respondent No.1') located in e city of Madurai, by his family members. A preliminary check-up was done by Dr. Arun, (Respondent No.4) a consultant cardiologist at e above said hospital. The Respondent No.4 suggested for several tests which included ECG, Chest X Ray, blood tests and Echocardiography. The test reports showed at e patient suffered myocardial infarction (heart attack). The reports also confirmed at e patient was having high blood sugar. But e Patient did not apprise Respondent No.4 e details of previous treatment taken from Respondents.2 & 3. Respondent No.4, in e best interest of e patient, suggested for angiogram to look for e blocks in e blood vessels. On performing angiogram on , it was found at ree major vessels in e heart had blocks ranging from 70% to 90%. Therefore, he referred e patient to Dr.David, a Cardiooracic Surgeon (hereinafter referred to as e Respondent No.5) and his team in e same hospital for furer treatment as

10 it required Respondent No.5's intervention in at case. 4. Respondent No.5 advised at e only treatment at is juncture was to undergo an open-heart by-pass surgery (CABG). On , after getting e consent from e patient, e surgery was performed and e entire process lasted 8 hours. The Patient was shifted to Intensive Coronary Care Unit (ICCU) under Respondent No.5's instructions for intensive post-surgery monitoring. The first 48 hours after e surgery were uneventful and e patient recuperated well. He was shifted to Intensive Care Unit (ICU) under Respondents No.4 & 5's treatment. On , as e patient was feeling better, he was shifted to e ward. After two days, e patient was discharged on wi cardiac supportive medication and asked to come for review 10 days later. 5. On , when he was taking rest in his house, e patient developed pain, fever and discomfort in e operated area and was taken back to e casualty of Quick Heal Hospital. The patient was admitted by e Respondent No.5's Assistant who was also a doctor, as Respondent No.5 had gone abroad to attend an International Medical Conference. The patient was informed about e surgical site infection by e Assistant who also took a swab for culture and sensitivity. Returning on , Respondent No.5 found e surgical site infected and saw e result of culture sensitivity. The infection could be treated by cefixime and gentamicin. As e patient was on gentamicin injection already and did not improve, e Respondent No.5 advised his assistant to start on cefixime injection on So, his orders were carried out and e Patient was started on injection Cefixime, after a test dose. The next day after e second dose of injection, e patient complained of mild itching over e right forearm near e injection site. The patient's wife, Padmavai (hereinafter referred to as 'e Appellant') immediately reported is matter to e Staff Nurse on duty at 11 P.M and e Staff Nurse applied some ointment for immediate relief and reassured e Appellant. The facts also revealed at e Respondents No.4 & 5 didn't enquire e patient regarding e previous treatment taken by e patient, if any. 6. The next day at 8 A.M in e evening, anoer dose of injection was given by e staff nurse as instructed by e duty doctor. The patient complained of severe itching around 9 A.M over e injection site and his face and lips were swollen. Then, e duty doctor was informed and he diagnosed it to be a case of anaphylaxis (allergy) due to e antibiotic injection which can be commonly encountered and started him on steroids. In spite of earnest

11 efforts on e part of Respondent No.5 who had been informed of e development, e patient's condition deteriorated and he died at A.M on due to above said complications. 7. The Appellant, Padmavai, a literate, (Wife of e deceased) filed a consumer complaint on , under e Consumer Protection Act, 1986 before e State Commission against Quick Heal Hospital Pvt. Ltd and Respondents No.2 to 5 on e following grounds: a) The allegation against Respondent No. 2 was at he did not diagnose e condition properly and had treated e deceased for anoer disease; b) The allegation against Respondent No.3 was at he failed to inform e deceased about e cardiac involvement and had asked to perform routine tests which are not relevant to cardiac disease. c) The Appellant also alleged at because of negligence and leargic attitude shown by Respondent No.2 and 3, e deceased had landed wi massive heart attack; d) The allegation against Respondent No.4 was at he did not choose e apt diagnostic test to come to a conclusion and made e patient to undergo angiogram unnecessarily. Instead, he could have directly referred him to Respondent No.5. Thus, a heavy financial expenditure was caused to e deceased besides unnecessary strains on his heal; e) The allegation against Respondent No.5 was at he did not perform e surgery properly resulting in deficiency in service and heal complications. As a result, ere was infection which affected e heal of e deceased drastically. The Appellant alleged deficiency in service and negligence against Respondent No.5 in e following activities: (a) Negligence in performing e surgery properly; (b) Not informing about e complications at would follow after e surgery; (c ) Failure to give proper post-operative care; (c) Delegating e case to his assistant who is not an expert, as he went abroad for e International Conference and ereby ere was a dereliction of duty; (d) Failing to inform e allergic complications involved in ese type of cases and ereby violating e right of informed consent;

12 f) The allegation against e Quick Heal Hospital was at ere was negligence in taking due care of e patients by e staff on duty, applying e principle of Vicarious Liability. 8. The Appellant alleging medical negligence and deficiency in service, prayed for a compensation of Rs.50 lakhs along wi e costs of e suit and Rs.5 lakhs towards e expenses incurred in e treatment as e deceased was e sole bread winner of e family. 9. The Appellant also prayed e Court to pass such oer orders as are necessary in interest of justice, equity and good conscience. 10. The State Commission after hearing e arguments of learned counsels appearing on behalf of bo e parties passed e following orders on in favour of e Appellant: a) The State Commission found no negligence on e part of Respondent No.2 & 3 stating at ey did eir part. As regards oer Respondents, e Commission found at ere was gross negligence and dereliction of duty on e part of e Respondents No.1, 4 & 5 which led to e dea of e patient. b) The Commission found negligence on e part of e Respondents on e following grounds: (i) Not taking sufficient care while performing e surgery (ii) Diagnostic meods and not caring to ascertain e previous history of e patient (iii) Poor post-operative care; (iv) Delegating e case to a non-expert; (v) Violation of not obtaining informed consent wiout explaining allergic and oer complications. c) So, e Commission directed at each Respondent has to pay Rs.10 Lakhs to e Appellant as e liability of e Respondents was joint and several. The Commission also awarded costs of Rs.10,000/-. However, e Commission did not find any justification for e claim of Rs.5 lakhs towards medical expenditure. 11. The State Commission us held at it was gross negligence on e part of e Respondents No.1, 4 & 5 resulting in deficiency in service. 12. Against e order of e State Commission, bo e parties filed appeals before e National Commission. The Appellant filed e appeal on

13 seeking enhanced compensation of Rs.50 lakhs and e Respondents No.1, 4 & 5 filed e appeal on seeking to set aside e order of e State Commission. 13. The National Commission allowed e appeal filed by e Respondents No.1, 4 & 5 and dismissed e appeal filed by e Appellant for enhancement of compensation on and held at ere was no medical negligence and deficiency in service on e part of e respondents for e reasons stated below: a) In consonance wi views of e State Commission as regards e Respondent No.2 & 3, e National Commission held at ere was no negligence on e part of Respondent No.2 as he did his part according to e facilities available in e Primary Heal Centre; when e deceased came for e second time, he also aptly referred to e nearest Government Hospital for furer treatment. Wi regard to Respondent No.3, e National Commission held at he acted diligently and asked e patient to take some tests and to come for a review. But e patient did not turn up and take e tests as advised by Respondent No.3. b) In is connection, e Commission observed at in medical profession, e rights and duties are mostly inter-related; Doctor's duty becomes Patient's right and vice-versa. So, in every medical case, e success is on e fulfilment of duties by bo e parties. Applying e above proposition in e present case, e Commission was of e view at ere was serious violation of instructions given by bo Respondents No.2 & 3. Hence, ere is a breach of duty by e patient in following e instructions given by e Respondents No.2 & 3. c) In addition to e aforesaid breach, e patient has also concealed e fact of previous treatment (taken from Respondents No.2 & 3) to Respondents No.4 &5. d) Wi regard to Respondents No.4 & 5, e National Commission held at e treatment and diagnostic meods were certified by a team of experts at ey were according to medical jurisprudence & standards of medical practice and hence, ere was no deviation from it. The Commission also held at e infection and allergic reactions are common for such type of cases which could not be held

14 to be a medical error. Despite at, e Respondents No.4 & 5 tried eir best. Hence, e Commission stated at ere was no medical negligence on e part of Respondent Nos.4 & 5. In is regard, e Commission observed at merely because e case resulted in e dea of e patient, e liability of negligence cannot be fastened on e doctors; if is trend continued, e doctors may fear to take e complicated cases in future which will be having devastating effects on e heal of e People. e) The Commission furer held at ere was also no violation of right to informed consent as e facts revealed at consent was clearly obtained in e proper form. It is e duty of e patient to read e instructions meticulously and to understand its consequences clearly before taking e decision. f) As regards e Respondent No.1, e Commission held at e principle of vicarious liability could not be attracted primarily because ere was no breach of instructions given by e doctors by e staffs on duty. 14. Against e order of e National Commission received on , e present Civil Appeal has been filed by e Appellant (Wife of e deceased) before e Supreme Court of India on Prepare e arguments for e case of Padmavai Vs. Quick Heal Hospital Pvt. Ltd and Oers for e bo sides on e following issues: a) Wheer ere is any medical negligence constituting deficiency in service on e part of e Respondents under e Consumer Protection Act, 1986? b) Is ere any violation of Right to Informed Consent of e Patient? c) Wheer ere is any negligence on e part of e Quick Heal Hospital Pvt Ltd? If negligent, will e principle of Vicarious Liability be attracted? d) Is ere any violation of Right to Life of e Patient guaranteed under Article 21 of e Constitution of India?

15 MISCELLANEOUS Copyright The copyright over e memorials submitted for participation in e competition by participants shall vest completely wi e Chair of Excellence on Consumer Law and Jurisprudence of The Tamil Nadu Dr.Ambedkar Law University, Chennai. The Participants shall certify in writing e originality of materials contained erein and shall be responsible for any claim or dispute arising out of e furer use and exhibition of ese materials. Furer use and exhibition of ese materials, electronically or oerwise, shall be e exclusive right of e Chair of Excellence on Consumer Law and Jurisprudence of The Tamil Nadu Dr.Ambedkar Law University, Chennai which shall not be responsible for any liability to any person for any loss caused by errors or omissions in e collection of information, or for e accuracy, completeness, or adequacy of e information contained in ese materials. Disclaimer The Moot Court Competition is based on a fictitious problem, whereby e characters & e incidents or e course of events in e moot court are completely imaginary and e same has no relation to any person living or dead or any post/present real life incident. The Moot Court Competition is made solely for e purpose of training law students of Tamil Nadu in developing an analytical bent of mind and serving e Bar and e Bench to e best of eir abilities. Accommodation and Food nd Accommodation and food shall be provided by e Organizers from e evening of 2 February, 2018 to evening of 4 February, Those who need accommodation should make a request to e organisers by 10 January, Travelling Allowance nd Outstation participants will be provided Travelling allowance (2 Class Train Fare / equivalent bus fare) on production of e tickets. Reaching of place of Accommodation and venue of Moot Court Competition has to be taken care of by e participants. REGISTRATION & DECLARATION FORM Participants are requested to download e Registration and Declaration Form from e university website at and send e filled-in Forms to e convenor Prof. (Dr.) V. Balaji on or before 31 st December 2017.

16 FOR MORE DETAILS, CONTACT In case of any queries or clarifications regarding e competition, feel free to contact e following persons. All correspondence relating to e Moot Court Competition should be made to e consumerchair@gmail.com. Parton-in-Chief Prof.(Dr.) N.S.Sanosh Kumar Convenor, The Tamil Nadu Dr.Ambedkar Law University, Chennai & Director, Directorate of Legal Studies, Chennai. Director Thiru.R.Sananam Honorary Director, Chair of Excellence on Consumer Law and Jurisprudence, The Tamil Nadu Dr.Ambedkar Law University,Chennai. Convenors Prof.(Dr.) V.Balaji Project Director, Chair of Excellence on Consumer Law and Jurisprudence, No.5, Dr.D.G.S.Dinakaran Salai, Raja Annamalai Puram, The Tamil Nadu Dr.Ambedkar Law University, Chennai Prof.(Dr.) S.Narayana Perumal Director i/c, U.G Studies, School of Excellence in Law, Tamil Nadu Dr.Ambedkar Law University, Chennai. Dr.R.Haria Devi Asst.Professor (SS), School of Excellence in Law, Tamil Nadu Dr.Ambedkar Law University, Chennai. Co-ordinators Dr.Ranjit Oommen Abraham Asst.Professor (SS), School of Excellence in Law, Tamil Nadu Dr.Ambedkar Law University, Chennai. Mr.R.Karuppasamy Research Associate, Chair of Excellence on Consumer Law and Jurisprudence, Tamil Nadu Dr.Ambedkar Law University, Chennai 28, Ph: Student Convenors Sharon Elizabe V.S. Nivedha CP Jyotsna Sivakumar Aishwarya Lakshmi Nivedhana Baskar Ashwany