UNIVERSITY OF PETROLEUM AND ENERGY STUDIES

MOOT COURT MEMORIAL

UNDER SUPERVISION OF Mrs. CHARU SHRIVASTAV

Submitted by:

VAIBHHAV
VIJAYVARGIYA

BEFORE THE
 HONBLE DISTRICT COURT OF MADHYA PARDESH

SHIVA BAI...PLAINTIFF

V.

DR. P. JAMJHUTE DEFENDANT

TABLE OF CONTENTS
Index OF AUTHORITIES

STATUTES REFERRED
CASES REFERRED
BOOKS REFERRED
WEBSITE REFFERED
LIST OF ABBREVIATIONS
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
ISSUES INVOLVED
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
PRAYER

INDEX OF AUTHORITIES
Statutes:

The Consumer Protection Act 1986

The law of Torts

Cases:

DR. P JhamJhute v Shiva Bai, 2011(1) CPR 140 (NC).

Jacob Mathew vs. State of Punjab and Anr. (2005) 6 SCC 1
Aparna Dutta v. Apollo Hospital Enterprises Ltd 2002 ACJ
954, AIR 2000 Mad 340, (2000) IIMLJ 772

Books:

Modi, A Textbook Of Medical Jurisprudence And Toxicology,

12THEdn., LexisNexis
Ratanlal & Dhirajlal The Law of Torts 26th Edn

Websites:

Manupatra.com
SCC ONLINE
WEST LAW
 LIST OF ABBREVIATIONS

& And
Edn Edition
ICA Indian Contract Act
Honble Honorable
AIR All India Radio
V Versus
U/s Under section
CCP Code of civil procedure
 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;
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:
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 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
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 corer; 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

1) Smt. Shiva Bai underwent hysterectomy in Gita Hospital. She was

operated upon by Dr. Jhamjhute
2) 10 days after the operation, even ,though her medical condition was
very bad and before the stitches were removed, she was discharged
by Dr. Jhamjhute
3) After a few days she was advised to come after two months since
Dr. Jhamjhute had gone abroad. Having no other option, she sought
treatment in the Life Line Hospital where an operation was
performed.
4) 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.
5) 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.
Smt. Shiva Bai wants Dr.Jamjhute to pay damages to her.
 STATEMENT OF ISSUES

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: Is the hospital as well as doctor both are justified for their
accusation?
 SUMMARY OF ARGUMENT

Did the negligence of duty have occurred by DR. Jhamjhute under

consumer protection act?

It is humbly submitted before the court that there was violation of right
U/s 2(1) (g) of Consumer Protection Act, 1986 and the plaintiff can sue the
defendant under Consumer Protection Act 1986. Dr. Jamjhute is liable for his
negligence as he went to abroad before giving whole service to the smt shiva bai

II

Whether there was a fiduciary relationship between the

complainant and respondent?

Yes there was a fiduciary relationship between dr. jhamjhute and shiva bai. Shiva
bai was his patient and dr. jhamjhute was his doctor so there was a relationship
of doctor and patient, there was breach of fiduciary duty from dr. jhamjhute
 III

Is the hospital as well as doctor both are justified for their accusation?

Yes both hospitals as well as doctor are justified for their accusation
because there was medical negligence and both are liable for the
negligence.

ARGUMENTS ADVANCED

Yes there was medical negligence on the part of dr jhamjhute

A: According to the Medical negligence law

It is well known that a doctor owes a duty of care to his patient. This duty
can either be a contractual duty or a duty arising out of tort law. In some
cases, however, though a doctor-patient relationship is not established, the
courts have imposed a duty upon the doctor. In the words of the Supreme
Court every doctor, at the governmental hospital or elsewhere, has a
professional obligation to extend his services with due expertise for
protecting life
The liability of a doctor arises not when the patient has suffered any injury,
but when the injury has resulted due to the conduct of the doctor, which
has fallen below that of reasonable care. He is liable for only those that are
a consequence of a breach of his duty.
Hence, In the case of Shiva Bai VS Dr Jhamjhute, Dr Jhamjhute was
negligent and there was fall of reasonable care from the side of Dr
Jhamjhute and the hospital.
As per the facts-
10 days 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. 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
Dr Jhamjhute have violated section 2(g) and 2(o) under consumer protection act-
 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 avail-
able 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;
Case law-
DR. P JhamJhute v Shiva Bai, 2011
Judgement by Veenita rai
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.

II

Yes there was a fiduciary relationship between dr. jhamjhute and shiva bai.

Fiduciary duty is the highest standard of care at either equity or law. A fiduciary is
expected to be extremely loyal to the person to whom he owes the duty such that there
must be no conflict of duty between fiduciary and principal, and the fiduciary must not
profit from his position as a fiduciary
According to the fiduciary duty-

Duty of Care: The fiduciary owes a duty of care toward the principal. This means they are legally
required to be educated and informed about the laws and issues regarding the procedures, conditions,
and surgeries they are administering. If they are not adequately informed, they may not be legally
liable if they did not have enough time to obtain the relevant information. However, doctors must also
have a critical eye when processing medical information and have a sound method of evaluating the
credibility of the information.
Duty of Competence: A doctor must be accredited, receive the state and federally mandated
education for his or her role, must stay up to date on licensing, and stay current on new forms of
treatment and new medications. The doctor has a duty to stay at a baseline of competency in order to
best serve patients. Competency is assessed by measuring what other professionals might do in a
similar situation or under similar circumstances. The locality rule may apply in assessing
competence: a doctor is judged by what other doctors in the same area are doing in regards to specific
treatments and procedures.

There was a fiduciary relationship between plaintiff and defendent.Defendent has violated
the fiduciary principals
Lack of duty of care
Lack of competence

When shiva bai complained about his pain 10 days after the operation, she was told to come
again after 2 months because Dr.jhamjhute was in abroad at that time no action was taken by
Geeta hospital or by Dr.Jamjhute itself thats where the duty of care and duty of competence
was violated.
In the case of: Shanta v. State of Andhra Pradesh and Ors
When the State or its servants failed to discharge their duty, when their
omissions are such that are seen causing serious injuries, as in the case of
the petitioner, we have no hesitation in holding that besides any remedy
under the private law for damages, the petitioner shall be entitled to be
compensated by the Government of the State for the negligence of its
servants -- the third respondent and other Doctors and members of the
staff of Government Maternity Hospital, Afzalgunj

III

Yes both hospital as well as doctor are justified for their accusation
because there was medical negligence and both are liable for the
negligence and this negligence could be a case of tort also because half
meter sponge was left inside shiva bai due to the negligence of
Dr.Jamjhute and later on no action was taken by Geeta hospital to solve
the issue.

According to tort-
Negligence as a tort is the breach of the legal duty to take care which
result in damages, undesired by defendant, to the plaintiff
This definition involves three constituents of negligence:
1. A legal duty to exercise due care on the part of the party complained of
towards the party complaining the formers conduct within the scope of
the duty.
2. That the defendant committed the breach of the said duty.
3. That the plaintiff suffered consequential damage due to the breach of
duty.
4. That the consequences were undesirable.

The Concept of Res Ispa Loquitor

The rule that it is for the plaintiff to prove negligence of the defendant
may cause hardship to the plaintiff if it is impossible for him to know what
precise acts or omissions led to his injury or damage, and this is most
obviously so, where the cause of the damage is peculiarly within the
means of knowledge of the defendant who caused it. In these
circumstances this hardship can be avoided by the application of the
maxim res ipsa loquitor. The maxim is not a principle of liability but a rule
 of evidence. It means that a thing speaks for itself, i.e., the facts and
circumstances which the plaintiff has proved established a prima facie
case of negligence against the defendant. The requirement is that mere
happening of the accident should tell its own story and raise the inference
of negligence on the part of the defendant.
Aparna Dutta v. Apollo Hospital Enterprises Ltd., the plaintiff got herself
operated for the removal of her uterus in the defendant hospital. During
operation, abdominal pack was left in the abdomen. The same was
removed by a second operation. Leaving foreign matter in the body during
operation was held to be a case of res ipsa loquitor. The doctor who
performed the operation and the hospital were held liable to pay
compensation of Rs. 5, 80,000 to the plaintiff.
The maxim res ipsa loquitor acts as a rescuer for the complainant by
easing their burden of proving the negligence of the doctor of the hospital
authorities in the cases of gross negligence which is manifest in the very
act of the doctor itself. It is a relief for the patients who have been a
subject of such gross negligence.

In the case of plaintiff she have been a subject to negligence as per the
facts-
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.

When she went back again to hospital she was told to comeback after 2
months at that time there was the negligence of omission from the side of
hospital and the doctor because no action was taken so then she decided
to go another hospital but it was too late and she lost her small intestine
because of puss formation due to negligence of Dr.jhamjhute and Geeta
hospital.

Both hospital and doctor are justified for accusation and are liable to
compensate Shiva Bai. The expenditures occurred during her operation in
lifeline hospital and the pain she suffered due to the medical negligence of
Dr.Jamjhute and Geeta Hospital.
 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. 50,000/- .

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

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 Plaintiff.